Lyes v. City of Riviera Beach, FL
Opinion
[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT FILED ________________________ U.S. COURT OF APPEALS ELEVENTH CIRCUIT 02/11/99 No. 96-4577 THOMAS K. KAHN ________________________ CLERK
D.C. Docket No. 95-8285-CIV-KLR
SHARI L. LYES,
Plaintiff-Appellant,
versus
CITY OF RIVIERA BEACH, FLORIDA, CINTHIA BECTON, ET AL.,
Defendants-Appellees. ________________________
Appeal from the United States District Court for the Southern District of Florida ________________________ (February 11, 1999)
Before TJOFLAT, ANDERSON, EDMONDSON, COX, BIRCH, DUBINA, BLACK, CARNES, HULL, and MARCUS, Circuit Judges and KRAVITCH, Senior Circuit Judge.
CARNES, Circuit Judge: We granted the defendant’s petition for rehearing en banc in this
employment discrimination case to decide two issues. The first is whether
women are a protected class for 42 U.S.C. § 1985(3) purposes, so that a sex-
based conspiracy against women is actionable under that provision. We hold
that they are and it is. We also hold that Congress has the constitutional authority
to prohibit such conspiracies, at least where they involve state action.
The second issue concerns the test applicable for deciding whether the
employees of two employers are to be aggregated for determining if the
minimum number of employees exist for Title VII coverage. We hold that the
“single employer” aggregation test adapted from cases involving the NLRB, in
which the employers are always private entities, is not applicable to those Title
VII cases in which the employers are state and local government entities. For
those cases we adopt a different test, one which presumes public entities that
are separate under state law will not be aggregated for Title VII purposes. The
plaintiff may rebut that presumption, however, by showing either: 1) that the
state’s purpose for separating the entities under state law was to evade Title VII,
or 2) that the entities are so closely related with respect to the fundamental
2 aspects of employment relationships that the presumption in favor of the state
law’s denomination is clearly outweighed.
Applying that test to the public entity that employed the plaintiff in this
case, we find there is not enough evidence of interrelatedness to allow a
reasonable fact finder to conclude that the presumption in favor of the state’s
denomination of the entity as separate and distinct from any other state or local
body is clearly outweighed.
I. FACTS AND BACKGROUND
Because the factual and legal background of this case is more fully set forth
in the panel opinion, Lyes v. City of Riviera Beach, Florida, 126 F.3d 1380 (11th
Cir. 1997), vacated and reh’g en banc granted, 136 F.3d 1295 (1998), we
outline it only briefly here. The plaintiff, Shari Lyes, was hired by the City of
Riviera Beach Community Redevelopment Agency (the “CRA”) in 1989. Four
years later, the position of Executive Director of the CRA became vacant. The
CRA Board of Commissioners awarded the position to Neil Crilly, a male
employee. When Lyes asked why she was not offered the position, she allegedly
was told by a Board member that she was not qualified because of her sex. Lyes
sued the City, the CRA, the members of the City Council, and Crilly, alleging
3 that they had discriminated against her on the basis of her sex in violation of 42
U.S.C. § 1983, 42 U.S.C. § 1985(3), Title VII, and Florida law.
The district court granted summary judgment for the defendants on all of
the federal claims, and dismissed the state law claims without prejudice under 28
U.S.C. § 1367(c)(3). The judgment against Lyes on the federal claims was based
on the district court’s conclusions that: (1) Lyes’ 42 U.S.C. § 1983 claims were
foreclosed by our decision in McKinney v. Pate, 20 F.3d 1550 (11th Cir. 1994);
(2) women are not a protected class under 42 U.S.C. § 1985(3), therefore, sex-
based conspiracy claims are not actionable under that provision; and (3) the
CRA did not employ fifteen or more people itself as is required for Title VII
coverage, and under the NLRA’s single employer aggregation test the CRA and
the City should not be aggregated. Lyes appealed the district court’s grant of
summary judgment, and the panel reversed.
The panel held that Lyes’ §1983 claims were based at least in part on the
Equal Protection Clause, not solely on the Due Process Clause as the district
court had thought. Accordingly, the panel remanded the § 1983 claims for
reconsideration in light of equal protection principles. See Lyes, 126 F.3d at
4 1387-89. We adhere to the panel’s reasoning and result on the § 1983 claim, and
reinstate that portion of the panel opinion.
With regard to Lyes’ § 1985(3) claim, the panel held that women are a
protected class under that provision, so that sex-based conspiracies against them
are actionable under it. See id. at 1389-91. We address that issue in Part II of this
opinion.
As to the Title VII claim, the panel agreed with the district court that the
single employer aggregation test developed in the NLRB context should be used
to determine whether the CRA and the City are a single employer for Title VII
jurisdictional purposes. See id. at 1385-86. However, the panel disagreed with
the district court on the result of applying that test to the facts of this case and
concluded there was a genuine issue of material fact as to whether the CRA and
the City are a single employer. See id. at 1386. We discuss those issues in Part
III of this opinion.
II. WHETHER WOMEN ARE A PROTECTED CLASS
UNDER 42 U.S.C. § 1985(3), SO THAT SEX-BASED
5 CONSPIRACIES AGAINST THEM ARE ACTIONABLE
UNDER THAT PROVISION
Lyes claims that the defendants’ actions constituted a conspiracy to deprive
her of equal protection of the laws in violation of 42 U.S.C. § 1985(3). The
district court granted summary judgment in favor of the defendants on that claim,
because it believed that § 1985(3) prohibits only those conspiracies motivated
by racial animus and does not extend to those motivated by sex-based animus
against women. We disagree, at least where, as in this case, the conspirators are
acting under color of state law.
We begin our discussion by addressing the question of whether women are
a “class of persons” within the meaning of § 1985(3). Because we conclude that
they are, we then address the issue, raised in a dissenting opinion, about the
source of Congress’ authority to protect women from sex-based conspiracies
against them by persons acting under color of state law.
With regard to the scope of § 1985(3), the language of the statutory
provision is clear and broad. It unequivocally states that:
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[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT FILED ________________________ U.S. COURT OF APPEALS ELEVENTH CIRCUIT 02/11/99 No. 96-4577 THOMAS K. KAHN ________________________ CLERK
D.C. Docket No. 95-8285-CIV-KLR
SHARI L. LYES,
Plaintiff-Appellant,
versus
CITY OF RIVIERA BEACH, FLORIDA, CINTHIA BECTON, ET AL.,
Defendants-Appellees. ________________________
Appeal from the United States District Court for the Southern District of Florida ________________________ (February 11, 1999)
Before TJOFLAT, ANDERSON, EDMONDSON, COX, BIRCH, DUBINA, BLACK, CARNES, HULL, and MARCUS, Circuit Judges and KRAVITCH, Senior Circuit Judge.
CARNES, Circuit Judge: We granted the defendant’s petition for rehearing en banc in this
employment discrimination case to decide two issues. The first is whether
women are a protected class for 42 U.S.C. § 1985(3) purposes, so that a sex-
based conspiracy against women is actionable under that provision. We hold
that they are and it is. We also hold that Congress has the constitutional authority
to prohibit such conspiracies, at least where they involve state action.
The second issue concerns the test applicable for deciding whether the
employees of two employers are to be aggregated for determining if the
minimum number of employees exist for Title VII coverage. We hold that the
“single employer” aggregation test adapted from cases involving the NLRB, in
which the employers are always private entities, is not applicable to those Title
VII cases in which the employers are state and local government entities. For
those cases we adopt a different test, one which presumes public entities that
are separate under state law will not be aggregated for Title VII purposes. The
plaintiff may rebut that presumption, however, by showing either: 1) that the
state’s purpose for separating the entities under state law was to evade Title VII,
or 2) that the entities are so closely related with respect to the fundamental
2 aspects of employment relationships that the presumption in favor of the state
law’s denomination is clearly outweighed.
Applying that test to the public entity that employed the plaintiff in this
case, we find there is not enough evidence of interrelatedness to allow a
reasonable fact finder to conclude that the presumption in favor of the state’s
denomination of the entity as separate and distinct from any other state or local
body is clearly outweighed.
I. FACTS AND BACKGROUND
Because the factual and legal background of this case is more fully set forth
in the panel opinion, Lyes v. City of Riviera Beach, Florida, 126 F.3d 1380 (11th
Cir. 1997), vacated and reh’g en banc granted, 136 F.3d 1295 (1998), we
outline it only briefly here. The plaintiff, Shari Lyes, was hired by the City of
Riviera Beach Community Redevelopment Agency (the “CRA”) in 1989. Four
years later, the position of Executive Director of the CRA became vacant. The
CRA Board of Commissioners awarded the position to Neil Crilly, a male
employee. When Lyes asked why she was not offered the position, she allegedly
was told by a Board member that she was not qualified because of her sex. Lyes
sued the City, the CRA, the members of the City Council, and Crilly, alleging
3 that they had discriminated against her on the basis of her sex in violation of 42
U.S.C. § 1983, 42 U.S.C. § 1985(3), Title VII, and Florida law.
The district court granted summary judgment for the defendants on all of
the federal claims, and dismissed the state law claims without prejudice under 28
U.S.C. § 1367(c)(3). The judgment against Lyes on the federal claims was based
on the district court’s conclusions that: (1) Lyes’ 42 U.S.C. § 1983 claims were
foreclosed by our decision in McKinney v. Pate, 20 F.3d 1550 (11th Cir. 1994);
(2) women are not a protected class under 42 U.S.C. § 1985(3), therefore, sex-
based conspiracy claims are not actionable under that provision; and (3) the
CRA did not employ fifteen or more people itself as is required for Title VII
coverage, and under the NLRA’s single employer aggregation test the CRA and
the City should not be aggregated. Lyes appealed the district court’s grant of
summary judgment, and the panel reversed.
The panel held that Lyes’ §1983 claims were based at least in part on the
Equal Protection Clause, not solely on the Due Process Clause as the district
court had thought. Accordingly, the panel remanded the § 1983 claims for
reconsideration in light of equal protection principles. See Lyes, 126 F.3d at
4 1387-89. We adhere to the panel’s reasoning and result on the § 1983 claim, and
reinstate that portion of the panel opinion.
With regard to Lyes’ § 1985(3) claim, the panel held that women are a
protected class under that provision, so that sex-based conspiracies against them
are actionable under it. See id. at 1389-91. We address that issue in Part II of this
opinion.
As to the Title VII claim, the panel agreed with the district court that the
single employer aggregation test developed in the NLRB context should be used
to determine whether the CRA and the City are a single employer for Title VII
jurisdictional purposes. See id. at 1385-86. However, the panel disagreed with
the district court on the result of applying that test to the facts of this case and
concluded there was a genuine issue of material fact as to whether the CRA and
the City are a single employer. See id. at 1386. We discuss those issues in Part
III of this opinion.
II. WHETHER WOMEN ARE A PROTECTED CLASS
UNDER 42 U.S.C. § 1985(3), SO THAT SEX-BASED
5 CONSPIRACIES AGAINST THEM ARE ACTIONABLE
UNDER THAT PROVISION
Lyes claims that the defendants’ actions constituted a conspiracy to deprive
her of equal protection of the laws in violation of 42 U.S.C. § 1985(3). The
district court granted summary judgment in favor of the defendants on that claim,
because it believed that § 1985(3) prohibits only those conspiracies motivated
by racial animus and does not extend to those motivated by sex-based animus
against women. We disagree, at least where, as in this case, the conspirators are
acting under color of state law.
We begin our discussion by addressing the question of whether women are
a “class of persons” within the meaning of § 1985(3). Because we conclude that
they are, we then address the issue, raised in a dissenting opinion, about the
source of Congress’ authority to protect women from sex-based conspiracies
against them by persons acting under color of state law.
With regard to the scope of § 1985(3), the language of the statutory
provision is clear and broad. It unequivocally states that:
If two or more persons in any State or Territory conspire, or go in disguise on the highway or on the premises of another, for the purpose of depriving, either directly or indirectly, any person or class
6 of persons of the equal protection of the laws, or of equal privileges and immunities under the laws . . , the party so injured or deprived may have an action for the recovery of damages, occasioned by such injury or deprivation, against any one or more of the conspirators.
42 U.S.C. § 1985(3) (emphasis added). The question, then, is whether women
are “any class of persons” within the meaning of the statute.
Lyes argues that the textual similarity between the statute and the Equal
Protection Clause of the Fourteenth Amendment, coupled with the fact that the
statute was passed just three years after the Fourteenth Amendment was ratified,
indicates Congress intended the scope of the statute to be coextensive with that
of the Fourteenth Amendment, which prohibits sex-based classifications unless
they “serve important governmental objectives and [are] substantially related to
achievement of those objectives.” Craig v. Boren, 429 U.S. 190, 197, 97 S. Ct.
451, 457 (1976). We need not determine the outer limits of § 1985(3) coverage,
nor the precise relationship between the statute and the Equal Protection Clause,
in order to decide this case. For present purposes, all we need to decide is
whether § 1985(3) protects women as a class of persons from sex-based
conspiracies against them where the conspirators were acting under color of state
law. We conclude that it does, for the following reasons.
7 “In construing a statute we must begin, and often should end as well, with
the language of the statute itself.” United States v. Steele, 147 F.3d 1316, 1318
(11th Cir. 1998) (en banc)(internal quotation and citation omitted). Here, the text
of the statute indicates that women are a protected class within its domain,
because the statute’s prohibition of conspiracies against “any person or class
of persons” certainly is broad enough to encompass women, and no other
language in the statute excludes them from its coverage. As we noted in Merritt
v. Dillard, 120 F.3d 1181, 1186 (11th Cir. 1997), “the adjective ‘any’ is not
ambiguous; it has a well-established meaning.” Quoting the Supreme Court’s
decision in United States v. Gonzales, 117 S.Ct. 1032, 1035 (1997), we said in
Merritt that “the word ‘any’ has an expansive meaning, that is, ‘one or some
indiscriminately of whatever kind.’” Merritt, 120 F.3d at 1186. In this case, as
in Gonzales and Merritt, “Congress did not add any language limiting the breadth
of that word, so ‘any’ means all.” Id. at 1186 (quoting Gonzales)(internal citation
omitted). Thus, women are within the plain meaning of “any ... class of
persons,” which describes the statutory scope of coverage.
Our enthusiasm for applying the plain meaning canon to § 1985(3) is
tempered, however, by the Supreme Court’s decisions in Griffin v. Breckenridge,
8 403 U.S. 88, 91 S. Ct. 1790 (1971), and United Brotherhood of Carpenters &
Joiners v. Scott, 463 U.S. 825, 103 S. Ct. 3352 (1983). In Griffin, the Court
glossed the statutory language with a caution against reading § 1985(3) so
broadly (literally) as to turn it into “a general federal tort law” that would “apply
to all tortious, conspiratorial interferences with the rights of others.” 403 U.S.
at 101-02, 91 S. Ct. at 1798. In order to avoid such a result, the Griffin Court
held that the statute prohibits only those conspiracies motivated by “some racial,
or perhaps otherwise class-based, invidiously discriminatory animus. . . .” Id. at
102, 91 S. Ct. at 1798 (emphasis added). The Court declined to elaborate on the
“perhaps” qualifier, however, stating in a footnote that it “need not decide, given
the facts of this case, whether a conspiracy motivated by invidiously
discriminatory intent other than racial bias would be actionable. . . .” Id. at 102
n.9, 91 S. Ct. at 1798 n.9.
Consistent with the gloss it placed on the statutory language in Griffin, the
Court held in Scott that § 1985(3) does not reach “conspiracies motivated by bias
towards others on account of their economic views, status, or activities,” 463
U.S. at 837, 103 S. Ct. at 3361, the “others” in that case being nonunion
members. As it had in Griffin, the Court in Scott withheld judgment on whether
9 § 1985(3) extends beyond “its central concern” of combating conspiracies driven
by race-based animus. See id. at 837, 103 S. Ct. at 3360.
Thus, Griffin and Scott left open the issue we confront today, namely,
whether a conspiracy motivated by sex-based animus against women is
actionable under § 1985(3). It is clear to us, however, that if Griffin’s “perhaps
otherwise class-based, invidiously discriminatory animus” means anything at all
– and we think it does – it includes sex-based animus against women. Sex-based
classifications receive heightened scrutiny under the Equal Protection Clause,
see Craig, 429 U.S. at 197, 97 S. Ct. at 457, and discrimination based on sex
frequently has been characterized as “invidious.” See, e.g., Frontiero v.
Richardson, 411 U.S. 677, 686-87, 93 S. Ct. 1764, 1770 (1973) (“[S]tatutory
distinctions between the sexes often have the effect of invidiously relegating the
entire class of females to inferior legal status without regard to the actual
capabilities of its individual members.”); United States v. Chandler, 996 F.2d
1073, 1083 (11th Cir. 1993) (“Invidious factors, such as race or sex, cannot
influence a jury’s recommendation of the death penalty.”).
Because the statutory language of § 1985(3) is unambiguous, ordinarily
we would not consult legislative history to discern its meaning. See, e.g., United
10 States v. Gonzales, 117 S.Ct. 1032, 1035 (1997) (“Given the straightforward
statutory command, there is no reason to resort to legislative history.”); Ratzlaf
v. United States, 510 U.S. 135, 147 - 48, 114 S.Ct. 655, 662 (1994) (“we do not
resort to legislative history to cloud a statutory text that is clear”). In view of the
Supreme Court’s Griffin and Scott decisions, however, we think it prudent to
note that the legislative history of § 1985(3) is not manifestly inconsistent with
our holding. Although “[t]he legislative history of the Act confirms the
conclusion that . . . it was primarily motivated by the lawless conduct directed at
the recently emancipated citizens,” Bray v. Alexandria Women’s Health Clinic,
506 U.S. 263, 319, 113 S. Ct. 753, 785 (1993) (Stevens, J., dissenting), it also
reveals that at least some members of Congress believed actionable conspiracies
would include those “against a person because he was a Democrat, . . . or
because he was a Catholic, or because he was a Methodist, or because he was a
Vermonter . . . .” Id. at 296, 113 S. Ct. at 773 (Souter, J., concurring in part and
dissenting in part) (discussing remarks of Senator Edmunds, who managed the
bill on the Senate floor) (citations and quotations omitted). See also Scott, 463
U.S. at 837, 103 S. Ct. at 3360 (although the operative provision originated in a
11 House bill, “Senator Edmunds’ views, since he managed the bill on the floor of
the Senate, are not without weight.”).
Given prevailing attitudes at the time § 1985(3) was enacted, it is
certainly possible, if not probable, that many legislators who voted for the statute
were not concerned about affording legal protection to women as a class.
Nonetheless, we follow the plain meaning of the statute, because “statutory
prohibitions often go beyond the principal evil to cover reasonably comparable
evils, and it is ultimately the provisions of our laws rather than the principal
concerns of our legislators by which we are governed.” Oncale v. Sundowner
Offshore Servs., Inc., 118 S. Ct. 998, 1002 (1998).
Any conclusion that women are not a protected class under § 1985(3)
would run into a solid wall of contrary precedent. Relying primarily on the
statutory language and the Supreme Court’s statement in Griffin, the seven other
circuits that have actually decided the issue are unanimous in their view that §
1985(3) applies to conspiracies motivated by sex-based animus against women.
See Libertad v. Welch, 53 F.3d 428, 448-49 (1st Cir. 1995) (“[I]t is logical that,
at the very least, the classes protected by § 1985(3) must encompass those
classifications that merit heightened scrutiny under Equal Protection Clause
12 analysis, of which gender is one.”); National Org. For Women v. Operation
Rescue, 914 F.2d 582, 585 (4th Cir. 1990) (collecting circuit cases), rev’d in
part, vacated in part on other grounds, Bray v. Alexandria Women’s Health
Clinic, 506 U.S. 263, 113 S. Ct. 753 (1993); New York State Nat’l Org. for
Women v. Terry, 886 F.2d 1339, 1359 (2d Cir. 1989) (“By its very language §
1985(3) is necessarily tied to evolving notions of equality and citizenship. As
conspiracies directed against women are inherently invidious, and repugnant
to the notion of equality of rights for all citizens, they are therefore encompassed
under the Act.”); Volk v. Coler, 845 F.2d 1422, 1434 (7th Cir. 1988) (“[Section]
1985(3) extends beyond conspiracies to discriminate against persons based on
race to conspiracies to discriminate against persons based on sex, religion,
ethnicity or political loyalty.”); Life Ins. Co. of N. Am. v. Reichardt, 591 F.2d
499, 505 (9th Cir. 1979) (“[W]e conclude that women purchasers of disability
insurance are a sufficient class [under § 1985(3)].”); Novotny v. Great Am. Fed.
Sav. & Loan Assoc., 584 F.2d 1235, 1243 (3d Cir. 1978) (“The fact that a
person bears no responsibility for gender, combined with the pervasive
discrimination practiced against women, and the emerging rejection of sexual
stereotyping as incompatible with our ideals of equality convince us that
13 whatever the outer boundaries of the concept, an animus against women includes
the elements of a ‘class-based invidiously discriminatory’ motivation.”), vacated
on other grounds, 442 U.S. 366, 99 S. Ct. 2345 (1979); Conroy v. Conroy, 575
F.2d 175, 177 (8th Cir. 1978) (concluding that the district court properly
exercised jurisdiction where plaintiff had alleged a cause of action under §
1985(3) based in part on sex discrimination).
In addition to the holdings of the circuits we have set out above, one other
circuit has said in dicta that sex-based animus is actionable under § 1985(3). See
Haverstick Enters., Inc. v. Financial Fed. Credit, Inc., 32 F.3d 989, 994 (6th Cir.
1994). Only two circuits have indicated – and then only in dicta – that they would
hold women do not constitute a protected class under § 1985(3). See Deubert v.
Gulf Fed. Sav. Bank, 820 F.2d 754, 757 (5th Cir. 1987); Wilhelm v. Continental
Title Co., 720 F.2d 1173, 1176 (10th Cir. 1984).1
1 While the views of other circuits are not binding upon us in any event, we do accord them respect. But we give views espoused as mere dicta less respect than we give those that are forged as part of the holding in a case. See McDonald’s Corp. v. Robertson, 147 F.3d 1301, 1315 (11th Cir. 1998) (Carnes, J., concurring) (explaining why conclusions stated as dicta are less reliable than those that are part of a holding in a case). 14 The grand tally is this. Of the circuits that have squarely confronted and
decided the issue, seven have held that women are a protected class of persons
under § 1985(3), and none have held that they are not. If both holdings and
dicta are counted, eight of the circuits that have taken a position have said that
women are a protected class under § 1985(3); only two have said that they are
not.
Even though the views of individual Justices are not binding on us, see,
e.g., United States v. Stewart, 65 F.3d 918, 924 (11th Cir. 1995), it is appropriate
in a case of first impression in this circuit to consider the views of those Justices
who have expressed themselves on the issue. In Bray, Justices Souter, Stevens,
and O’Connor all stated independently and unequivocally that they believe
women are a protected class under § 1985(3). See Bray, 506 U.S. at 295-96, 113
S. Ct. at 769-75 (Souter, J., concurring in the judgment in part and dissenting in
part); id. at 322, 113 S. Ct. at 787 (Stevens, J., dissenting); id. at 350, 113 S. Ct.
at 802 (O’Connor, J., dissenting). We add the views of those three Justices to the
decisional mix and give them weight.
In addition, although the majority opinion in Bray does not explicitly hold
that women are a protected class under § 1985(3), some of its analysis seems to
15 suggest that they are. The issue in Bray was whether attempts to blockade
abortion clinics to keep people from going inside constituted a conspiracy to
deprive a person or a class of persons of equal protection of the laws in violation
of § 1985(3). See Bray, 506 U.S. at 266, 113 S. Ct. at 757-58. The Court
rejected “the claim that petitioners’ opposition to abortion reflects an animus
against women in general,” and explained that “[w]e do not think that the
‘animus’ requirement can be met only by maliciously motivated, as opposed to
assertedly benign (though objectively invidious), discrimination against women.
It does demand, however, at least a purpose that focuses upon women by
reason of their sex. . . .” Bray, at 269-70, 113 S. Ct. at 759. Although Bray did
not hold § 1985(3) outlaws conspiracies driven by sex-based animus against
women, language from the opinion at least hints that it does. We take the hint.
For all of the stated reasons, we conclude that women are a “class of
persons” within the meaning of § 1985(3), and therefore are protected by that
provision from conspiracies against them motivated by sex-based animus. We
respond now to a point raised by Judge Tjoflat in his dissenting opinion.
Judge Tjoflat concedes that the Thirteenth Amendment provides Congress
with a valid basis for enacting § 1985(3) insofar as that statutory provision
16 involves race, but questions the constitutional foundation for the provision
insofar as it involves sex. We need not answer that question as it applies to
private actor conspiracies against women, because those are not the facts of this
case. This case involves alleged action under color of state law. All of the
individual defendants are state or local officials, and it is undisputed that any
action they took involving the plaintiff was action under color of state law. Thus,
the only constitutional issue this case presents is whether Congress had a valid
basis for proscribing conspiratorial discrimination against women by persons
acting under color of state law.
Section 1985(3) does apply to conspiracies under color of state law, as well
as private conspiracies. See, e.g., Bray, 506 U.S. at 268, 113 S. Ct. at 758 (“In
Griffin this Court held, reversing a 20-year-old precedent, see Collins v.
Hardyman, 341 U.S. 651, 71 S. Ct. 937, 95 L.Ed. 1253 (1951), that § 1985(3)
reaches not only conspiracies under color of state law, but also purely private
conspiracies.”). The Equal Protection Clause of the Fourteenth Amendment
protects women from sex discrimination by persons acting under color of state
law. See Craig, 429 U.S. at 197, 97 S. Ct. at 457. Moreover, section 5 of the
Fourteenth Amendment empowers Congress “to enforce, by appropriate
17 legislation, the provisions” of that amendment, including the Equal Protection
Clause. We believe that Congress had ample authority under Section 5 of the
Fourteenth Amendment to include women within the scope of § 1985(3)’s
protection, at least where conspiracies to discriminate against them through
action under color of state law are involved.2
2 In his dissenting opinion, Judge Tjoflat flails away at two strawmen he has constructed. One he labels “the broad reading of the majority’s holding” and describes as the application of § 1985(3) to all conspiracies to commit torts arising out of sex-based animus. That broad reading strawman goes beyond the facts of this case and our holding in it. This case does not involve all such conspiracies; it involves only conspiracies by state actors utilizing state action. As Judge Tjoflat himself concedes, § 1985(3) may be applied constitutionally to such a conspiracy. We leave for another day and case the issue of whether it may be applied constitutionally to other sex-based animus conspiracies.
Judge Tjoflat’s dissenting opinion also attacks the “read more narrowly” strawman, which he characterizes as inserting a state action requirement into § 1985(3). We do not insert such a requirement into the statute. Instead, we simply recognize that where a conspiracy that is covered by the statute does involve state action, the issue of whether Congress had authority to prohibit that conspiracy is an easy one. The conspiracy alleged in this case was motivated by sex-based animus, and such conspiracies fall within the scope of §1985(3); the conspiracy also involved state action, so Congress clearly had the authority to prohibit it. We need not and do not go beyond those two holdings to decide this case.
18 For all of the reasons stated, we hold that sex-based conspiracies against
women are actionable under § 1985(3), and that where the conspiracies involve
state action, as the one alleged in this case did, Congress clearly had the
constitutional authority to make them actionable. We reverse that portion of the
district court’s summary judgment that is to the contrary.
III. WHETHER THE COMMUNITY REDEVELOPMENT AGENCY
AND THE CITY SHOULD BE COUNTED TOGETHER AS AN
“EMPLOYER” UNDER TITLE VII
A.
We turn now to the question whether the Community Redevelopment
Agency (the “CRA”) and the City should be aggregated and considered as a
single “employer” under Title VII’s definition of that term. Title VII defines
“employer” as “a person engaged in an industry affecting commerce who has
fifteen or more employees for each working day in each of twenty or more
calendar weeks in the current or preceding calendar year, and any agent of
such a person . . . .” See 42 U.S.C. § 2000(e)(b). “Person” is defined as
including “one or more individuals, governments, governmental agencies,
political subdivisions, labor unions, partnerships, associations, corporations, legal
19 representatives, mutual companies, joint-stock companies, trusts, unincorporated
organizations, trustees, trustees in cases under Title 11, or receivers.” See 42
U.S.C. § 2000e(a). Because we have treated the question of whether a defendant
meets the statutory definition of “employer” as a threshold jurisdictional matter
under Title VII, see Virgo v. Riviera Beach Associates, Ltd., 30 F.3d 1350, 1359
(11th Cir. 1994),3 a plaintiff must show that her “employer” had fifteen or more
employees for the requisite period provided under the statute before her Title VII
claims can be reached.
It is undisputed that the CRA itself, during the relevant time, did not
employ a sufficient number of individuals to fall within the statutory definition
of “employer.” It is also undisputed that if the CRA and the City are counted as
one, collectively they employ enough people to meet that definition. Lyes argues
that the two entities should be aggregated and treated as a single “employer”
Some judges in other circuits have doubted whether the number of 3
employees is a jurisdictional question. See Sharpe v. Jefferson Distrib. Co., 148 F.3d 676, 677-78 (7th Cir. 1998) (Easterbrook, J.) (dicta) (citing Steel Co. v. Citizens for a Better Env’t, --- U.S. ---, --- - ---, 118 S.Ct. 1003, 1009- 12 (1998)); EEOC v. St. Francis Xavier Parochial Sch., 117 F.3d 621, 624 (D.C. Cir. 1997). The parties were not asked to brief this issue, and we will not take this occasion to re-examine our circuit precedent holding that counting employees is a jurisdictional matter. 20 under Title VII, because the CRA and the City are interrelated in their operations
and both entities exercised substantial control over her conditions of
employment. By contrast, the CRA and the City contend that they are separate
and distinct legal entities and should be treated as such, which would remove the
CRA from Title VII’s definition of “employer” and effectively deprive us of
jurisdiction over that claim in this case. We must therefore decide what test
applies in determining whether separate state or local governmental entities
should be counted as a single “employer” for purposes of meeting the statutory
definition under Title VII.
B.
We accord a liberal construction to the term “employer” under Title VII.
See Virgo, 30 F.3d at 1359; McKenzie v. Davenport-Harris Funeral Home, 834
F.2d 930, 933 (11th Cir. 1987); Williams v. City of Montgomery, 742 F.2d 586,
588 (11th Cir. 1984). In keeping with this liberal construction, we sometimes
look beyond the nominal independence of an entity and ask whether two or more
ostensibly separate entities should be treated as a single, integrated enterprise
when determining whether a plaintiff’s “employer” comes within the coverage
of Title VII.
21 We have identified three circumstances in which it is appropriate to
aggregate multiple entities for the purposes of counting employees. First, where
two ostensibly separate entities are “‘highly integrated with respect to ownership
and operations,’” we may count them together under Title VII. McKenzie, 834
F.2d at 933 (quoting Fike v. Gold Kist, Inc., 514 F.Supp. 722, 726 (N.D. Ala.),
aff’d, 664 F.2d 295 (11th Cir. 1981)). This is the “single employer” or
“integrated enterprise” test. Second, where two entities contract with each other
for the performance of some task, and one company retains sufficient control
over the terms and conditions of employment of the other company’s employees,
we may treat the entities as “joint employers” and aggregate them. See Virgo,
30 F.3d at 1359-60. This is the “joint employer” test. Third, where an employer
delegates sufficient control of some traditional rights over employees to a third
party, we may treat the third party as an agent of the employer and aggregate the
two when counting employees. See Williams, 742 F.2d at 589. This is the
“agency” test. See generally 2 Barbara Lindemann & Paul Grossman,
Employment Discrimination Law 1309-17 (3rd ed. 1996).
22 The issue before us involves the “single employer” test.4 In determining
whether two non-governmental entities should be consolidated and counted as
a single employer, we have applied the standard promulgated in NLRA cases by
the National Labor Relations Board. See, e.g., McKenzie, 834 F.2d at 933. This
standard sets out four criteria for determining whether nominally separate
entities should be treated as an integrated enterprise. Under the so-called “NLRB
test,” we look for “(1) interrelation of operations, (2) centralized control of labor
relations, (3) common management, and (4) common ownership or financial
control.” Id. See also Radio and Television Broad. Technicians Local Union
1264 v. Broadcast Serv. of Mobile, Inc., 380 U.S. 255, 256, 85 S.Ct. 876, 877
(1965).5
4 Lyes argued before the district court and the panel that the “agency” test might also be relevant in this case. Maybe, but some of the same factors discussed below that make the usual “single employer” test (the NLRB test) difficult to apply in cases involving related governmental entities may also make the usual agency test a poor fit where public entities are concerned. In any event, we do not decide any agency issues, because the panel did not reach them, see 126 F.3d at 1385 n.6, and we limited our briefing request to the “single employer” issue. 5 Courts applying the NLRB “single employer” test to private entities in Title VII cases have held that not every factor need be present, and no single factor is controlling. See, e.g., Armbruster v. Quinn, 711 F.2d 1332, 1337-38 (6th Cir. 1983); Rivera v. Puerto Rican Home Attendants Servs., Inc., 922 23 The four-factor NLRB “single employer” test was first applied in the Title
VII context in Baker v. Stuart Broad. Co., 560 F.2d 389 (8th Cir. 1977). Since
that time, most of the circuits considering whether to integrate multiple entities
under Title VII have seized upon that test. See, e.g., Schweitzer v. Advanced
Telemarketing Corp., 104 F.3d 761, 764 (5th Cir. 1997); Cook v. Arrowsmith
Shelburne, Inc., 69 F.3d 1235, 1241 (2d Cir. 1995); Childs v. Local 18, Int’l Bhd.
of Elec. Workers, 719 F.2d 1379, 1382 (9th Cir. 1983); Armbruster, 711 F.2d at
1337-38 (6th Cir.). We, too, have applied the NLRB test. See McKenzie, 834
F.2d at 933. As one court employing the test noted, the similarity in language
between the NLRA and Title VII, and the fact that statute served as a model for
Title VII, makes decisions under the NLRA a useful resource for interpreting the
language of Title VII. See 29 U.S.C. § 152(2); Armbruster, 711 F.2d at 1336
(“Since it is clear that the framers of Title VII used the NLRA as its model, . .
. we find the similarity in language of the Acts indicative of a willingness to
allow the broad construction of the NLRA to provide guidance in the
F.Supp. 943, 949 (S.D.N.Y. 1996). See also Sakrete of N. Cal., Inc. v. NLRB, 332 F.2d 902, 905 n.4 (9th Cir. 1964) (stating the same rule in an NLRB case). 24 determination of whether, under Title VII, two companies should be deemed to
have substantial identity and treated as a single employer.”).
C.
However useful the four-factor NLRB “single employer” test may be in
Title VII cases where private entities are concerned, the question we face is the
different one of whether that test should be applied where state and local
governmental entities are concerned. In answering that question, we are aware
of Congress’s unmistakable intent that “Title VII principles be applied to
governmental and private employers alike.” Dothard v. Rawlinson, 433 U.S.
321, 331 n.14, 97 S.Ct. 2720, 2728 n.14 (1977). See also Owens v. Rush, 636
F.2d 283, 287 (10th Cir. 1980) (“Governmental subdivisions were brought within
the reach of Title VII” in the 1972 amendments to Title VII “so that ‘[a]ll state
and local government employees would . . . have access to the remedies available
under the Act.’”) (quoting 1972 U.S.C.C.A.N. 2137, 2152).
But we are also aware of the unmistakable reality that in certain key
respects, governmental entities are different from private ones. We will discuss
some of those differences later. For now, it is worth noting that equal treatment
consists not only of treating like things alike, but also of treating unlike things
25 differently according to their differences. This is a proposition whose
provenance stretches back to antiquity, see, e.g., Aristotle, The Nicomachean
Ethics, E.6.1131a-1131b (M. Ostwald trans. 1962), and it has as much logical
force now as it had in Aristotle’s day. If we are to apply Title VII’s principles
equally to governmental and private employers in a fair and intelligible manner,
we must apply those principles in a way that respects the differences between
private and public entities. See also Riley v. County of Pike, 761 F.Supp. 74, 76
(C.D. Ill. 1991) (applying the NLRB factors but noting that “[i]n addition to these
factors, when the employers in question are government entities, additional
criteria come into play.”).
The four NLRB factors are useful for counting employees of private
entities under Title VII, precisely because the test was “developed by the
National Labor Relations Board to determine whether consolidation of separate
private corporations is proper in determining the relevant employer” under the
NLRA. Owens, 636 F.2d at 286 n.2 (emphasis added). Of course, the NLRA
does not cover public employers, see 29 U.S.C. § 152(2), and it is hardly
surprising that a test designed to operate in the context of private entities does not
fit well cases involving governmental entities. States are not the equivalent of
26 corporations or companies, and local government bodies are not the same as
subsidiaries. With this in mind, we join those courts that have concluded that
“the [four-part NLRB] standard is not readily applicable to governmental
subdivisions[.]” Trevino v. Celanese Corp., 701 F.2d 397, 404 n.10 (5th Cir.
1983); Piper v. Junction City Hous. Auth., 1995 WL 88232, at *3 (D. Kan. Feb.
1, 1995). See also Massey v. Emergency Assistance, Inc., 724 F.2d 690, 692
(8th Cir. 1984) (Lay, C.J., dissenting) (“I think it clear such test is not applicable
to a factual situation concerning governmental entities.”).6 But see Artis v.
Francis Howell North Band Booster Ass’n, Inc., No. 97-4320, 1998 WL 846889,
at *6 (8th Cir. Dec. 9, 1998) (applying, without discussion, the NLRB test to a
private entity and a government entity and deciding that they should not be
combined); Massey, 724 F.2d at 690-91 (affirming, without discussion, the
district court’s application of the NLRB test to a government entity and the
decision that it should not be aggregated with a private entity); Vandermeer v.
Douglas Cty., 15 F.Supp.2d 970, 974-75 (D. Nev. 1998) (applying NLRB test to
In Dumas v. Town of Mt. Vernon, Ala., 612 F.2d 974, 980 n.9 (5th 6
Cir. 1980), our predecessor court declined without explanation to apply the NLRB test in a governmental context. While we are not as sanguine as the panel about distinguishing Dumas, see 126 F.3d at 1385-86, unlike the panel we are not bound by a prior panel decision. We consider the matter anew. 27 county and local fire and paramedic districts, but noting that “[t]he fact that
Nevada may consider Douglas County and the Districts to be separate political
subdivisions, while relevant, does not control.”); Rivera, 922 F.Supp. at 949;
County of Pike, 761 F.Supp. at 76-77 (applying NLRB test to Pike County and
Pike County State’s Attorney’s office in ADEA case, but concluding that they
should not be treated as an integrated enterprise).
The most obvious way in which the NLRB “single employer” test is
incompatible with cases involving governmental entities involves the test’s fourth
factor -- “common ownership or financial control.” McKenzie, 834 F.2d at 933.
Governmental subdivisions such as counties or towns, or smaller subdivisions
such as local agencies, may share sources of ultimate political control or funding,
yet be wholly distinct with respect to their day-to-day operations or their control
over relationships with employees. Thus, the “common ownership or financial
control” factor of the NLRB test has no application to the usual case involving
governmental subdivisions.
Nor is the NLRB test’s third factor, “common management,” McKenzie,
834 F.2d at 933, readily applicable in the case of governmental entities. While
it may be an appropriate yardstick in some instances, in others two public entities
28 may share managers or other employees while remaining politically separate and
distinct. In the present case, for example, each member of the City Council also
serves as a member of the CRA Board of Commissioners, but those city
councillors in their different capacity as commissioners comprise, by law, a
distinct and independent body. The Florida legislation that permits the members
of a local governing body to declare themselves a community redevelopment
agency, explicitly provides that “such members constitute the head of a legal
entity, separate, distinct, and independent from the governing body of the county
or municipality.” Fla. Stat. Ann. § 163.357(b) (West 1990). So the common
management factor, too, is not applicable in the context of governmental entities,
at least not in a case like this one.7
In addition to the fact that these two prongs do not make sense in the
context of state and local governmental entities, there is another, perhaps more
fundamental reason for not applying the NLRB test. That reason involves
federalism and comity concerns, which should play a significant role in
determining whether to treat as one body two governmental entities that are
See also Massey, 724 F.2d at 692 (Lay, C.J., dissenting) (arguing that 7
the “centralized control of labor relations” factor also is not relevant to an analysis involving local government entities). 29 separate and distinct under state law. When it comes to creating subordinate
public bodies and defining their relationship to one another and to itself, “‘the
state is supreme and its legislative body, conforming its action to the state
Constitution, may do as it will.’” City of Trenton v. State of New Jersey, 262
U.S. 182, 186-87, 43 S.Ct. 534, 536 (1923) (quoting Hunter v. Pittsburgh, 207
U.S. 161, 178, 28 S. Ct. 40, 46 (1907)). Defining the nature and relationship of
such bodies, no less than determining their level of funding, is “uniquely an
exercise of state sovereignty.” DeKalb Cty. Sch. Dist. v. Schrenko, 109 F.3d
680, 689 (11th Cir.) (quoting Stanley v. Darlington Cty. Sch. Dist., 84 F.3d 707,
716 (4th Cir. 1996)), cert. denied, 118 S.Ct. 601 (1997). We owe such
determinations by the state legislature not only deference, but great deference.
In rejecting the four-factor NLRB test as a means of determining whether
two or more governmental entities should be aggregated for the purposes of
determining if they are an “employer” under Title VII, we do not mean to suggest
that the two remaining prongs of the test, interrelation of operations and
centralized control of labor relations, are not relevant to our inquiry in any way.
But where state or local governmental entities are involved, any indicia of
integration must be considered in a framework that is sensitive to the differences
30 between governmental subdivisions and private entities. See Trevino, 701 F.2d
at 404 n.10.
D.
Given our conclusion that the traditional NLRB four-factor test is not
readily applicable to the question of whether to aggregate state and local
governmental entities for Title VII purposes, we must decide what standard or
test should apply in its place.8 Our inquiry must be guided by a combination of
“respect [for] the way a state chooses to structure its government[,]” McMillian
v. Johnson, 88 F.3d 1573, 1580-81 (11th Cir. 1996), aff’d, 520 U.S. 781, 117 S.
Ct. 1734 (1997) (citing City of St. Louis v. Praprotnik, 485 U.S. 112, 126, 108
S.Ct. 915, 925 (1988)), as well as recognition of our obligation to accord a liberal
construction to the terms of Title VII. See, e.g., Virgo, 30 F.3d at 1359.
The strong comity and federalism concerns we have mentioned require that
we accord substantial deference to a state lawmaking body’s determination of
whether two or more governmental entities are separate and distinct. We should
not brush aside a state’s own distinctions between its governmental
We are not required to decide in this case, and we express no view 8
about, whether this or some different test should apply to aggregation issues involving federal governmental entities. 31 subdivisions, because even ostensibly formal distinctions are part of a
government’s ability to shape its own institutions within constitutional bounds,
and we are obligated to respect a state’s right to do so. See McMillian, 88 F.3d
at 1581 (“[W]e heed the Supreme Court’s admonition that federal courts respect
the way a state chooses to structure its government.”). There are few things
closer to the core of a state’s political being and its sovereignty than the
authority and right to define itself and its institutions in relation to each other.
Of course, states cannot abuse that power to evade federal law, but it is unlikely
that a state would structure its state and local entities with that purpose in mind.
Such an evasive purpose is especially unlikely in a state like Florida, which has
enacted its own anti-discrimination legislation and made it applicable to local
governmental agencies. See Fla. Stat. Ann. § 760.02(6) (West 1997) (defining
“person” under the Florida Civil Rights Act of 1992 to include “any
governmental entity or agency.”).
We think that where a state legislative body creates a public entity and
declares it to be separate and distinct, that declaration should be entitled to a
significant degree of deference, amounting to a presumption that the public
entity is indeed separate and distinct for purposes of Title VII. The presumption
32 may be rebutted in some instances. In particular, if it is established that a state’s
purpose in creating or maintaining nominally separate entities was to evade the
reach of the federal employment discrimination laws, that alone is enough for
those entities to be aggregated when counting employees.
Even absent an intent to evade the application of federal law, we will
aggregate two or more governmental entities and treat them as a single Title VII
“employer” where other factors so plainly indicate integration that they clearly
outweigh the presumption that the entities are distinct. In order to determine
which factors should be considered in deciding whether the plaintiff has carried
her burden of showing that the presumption has been clearly outweighed, we
look to the factors courts have considered in Title VII cases involving private
employers.
Despite the primacy of the NLRB test as applied to private employers
under Title VII, “[c]ourts have used numerous formulations in assessing whether
a defendant is an ‘employer’ within the meaning of Title VII and other
employment discrimination statutes.” Rivera, 922 F.Supp. at 949. Our review
of the different factors that have been considered convinces us that they all share
a common focus: all of them seek to determine who (or which entity) is in
33 control of the fundamental aspects of the employment relationship that gave rise
to the claim. See, e.g., id. at 949 (“[The different tests] all have in common a
focus on one factor at issue here: the amount of control or supervision a
defendant exerts.”); Armbruster, 711 F.2d at 1337 (“[C]ontrol over the elements
of labor relations is a central concern” of the NLRB test); Trevino, 701 F.2d at
404 (centralized control of labor relations test “has been further refined to the
point that [t]he critical question to be answered then is: What entity made the
final decisions regarding employment matters related to the person claiming
discrimination?”) (internal quotation and citation omitted); Chester v. Northwest
Iowa Youth Emergency Servs. Ctr., 869 F.Supp. 700, 717-18 & n.10 (N.D. Iowa
1994) (collecting cases and noting that “control of employment decisions and
environment” is one of the central features of the tests).
Thus, two or more state or local governmental entities will be treated as a
single “employer” under Title VII where one entity exerts or shares control over
the fundamental aspects of the employment relationships of another entity, to
such a substantial extent that it clearly outweighs the presumption that the entities
are distinct. Several factors will guide our determination of whether the
presumption in favor of the distinctness of the public entities is clearly
34 outweighed -- or, at the summary judgment stage, whether a finder of fact could
reasonably conclude that it is clearly outweighed. As we have already noted, the
NLRB factors of “interrelation of operations” and “centralized control of labor
operations,” McKenzie, 834 F.2d at 933, may continue to be helpful in the
inquiry. Useful “indicia of control” may be drawn from the agency context,
including: “‘the authority to hire, transfer, promote, discipline or discharge; the
authority to establish work schedules or direct work assignments; [and] the
obligation to pay or the duty to train the charging party.’” Oaks v. City of
Fairhope, Ala., 515 F.Supp. 1004, 1035 (S.D. Ala. 1981) (quoting Barbara Schlei
and Paul Grossmann, Employment Discrimination Law 846 (1st ed. 1976)). Our
list of factors is not intended to be all inclusive, and consideration must be given
to the totality of the circumstances.
To summarize, we hold that when assessing whether multiple
governmental entities are a single “employer” under Title VII, we begin with the
presumption that governmental subdivisions denominated as separate and distinct
under state law should not be aggregated for purposes of Title VII. That
presumption may be rebutted by evidence establishing that a governmental entity
was structured with the purpose of evading the reach of federal employment
35 discrimination law. Absent an evasive purpose, the presumption against
aggregating separate public entities will control the inquiry, unless it is clearly
outweighed by factors manifestly indicating that the public entities are so closely
interrelated with respect to control of the fundamental aspects of the employment
relationship that they should be counted together under Title VII.
The standard we adopt is not whether a factfinder reasonably could
conclude the plaintiff has overcome the presumption. Instead, the standard is
whether the factfinder reasonably could conclude the plaintiff has clearly
overcome the presumption. The adverb “clearly,” which derives from the
federalism concerns we have discussed, is meant to be limiting. It is a thumb on
the scale, and sometimes it will be decisive because federalism concerns should
sometimes be decisive. Absent evidence of evasive purpose, in order to survive
a motion for summary judgment, a plaintiff will have to show that a reasonable
fact finder could conclude that the presumption of distinctness is clearly
outweighed.
E.
36 Applying this test to the present case, we conclude that Lyes has not
adduced sufficient evidence to allow a reasonable fact finder to conclude that the
City and the CRA should be treated as a single “employer,” bringing them
within the coverage of Title VII.9 See, e.g., Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 252, 106 S. Ct. 2505, 2512 (1986) (the court must ask “whether
reasonable jurors could find by a preponderance of the evidence that the plaintiff
is entitled to a verdict . . . .”); Raney v. Vinson Guard Serv., Inc., 120 F.3d 1192,
1198 (11th Cir. 1997) (“[T]he plaintiff is effectively required to put forth her
entire case at summary judgment [to] persuade the court that a reasonable fact
finder could rule in the plaintiff’s favor.”) (internal quotation and citation
omitted).
9 In treating the question of whether the City and the CRA are a single Title VII “employer” as a question of fact, we follow the practice of this Court in analogous Title VII cases involving private employers. See, e.g., McKenzie, 834 F.2d at 933 (“Our role is to decide whether McKenzie presented sufficient evidence to create a genuine issue concerning whether Davenport-Harris and Protective should be treated as a single entity.”). See also Garcia v. Copenhaver, Bell & Assocs., 104 F.3d 1256, 1262-65 (11th Cir. 1997) (drawing on Title VII cases to hold that “the question of whether or not a defendant is an ‘employer’ is a substantive element of an ADEA claim and [is] intertwined with the question of jurisdiction. That being the case, the resolution of the question must be made by the fact finder deciding the merits of the claim.”). 37 Florida law establishes a presumption that the CRA and the City are
separate and distinct bodies. As the district court noted, the State legislature
created community redevelopment agencies as independent legal bodies. See
Fla. Stat. Ann. § 163.356 et seq. (West 1990 & Supp. 1999). With the exception
of certain enumerated powers, they are granted “all the powers necessary or
convenient to carry out and effectuate the purposes and provisions of [the
community redevelopment agency legislation] . . . .” Fla. Stat. Ann. § 163.358
(West 1990 & Supp. 1999). The five City Council members also serve as the
Board of Commissioners of the CRA. But Fla. Stat. § 163.357, which permits
this arrangement, also states that “[t]he members of the governing body shall be
the members of the agency, but such members constitute the head of a legal
entity, separate, distinct, and independent from the governing body of the county
or municipality.” Fla. Stat. Ann. § 162.357(1)(b) (West 1990). See also 1991
Fla. Op. Att’y. Gen. 148 (No. 91-49, 1991). The clear distinction Florida law
draws between the CRA and the City raises the presumption that they are
separate and distinct entities.10
10 Moreover, these two entities are more than formally distinct. As the district court pointed out, the CRA maintains separate bank accounts and records, and files its own tax returns. It prepares its own budget and keeps its 38 Looking at the nature of Lyes’s employment relationship itself, we
conclude that she has not produced evidence of interrelatedness with regard to
control over employment sufficient to permit a reasonable fact finder to conclude
that the presumption that the governmental entities are distinct is clearly
outweighed. The CRA Board of Commissioners and its Executive Director
control the fundamental aspects of employment of the CRA’s staff. The
Executive Director hires and supervises the staff, and the Board may hire, fire,
and establish work schedules and assignments. The Executive Director is
employed by the CRA, and he serves at the pleasure of the CRA Board, not at the
pleasure of the City. Employees of the CRA receive their medical benefits, life
insurance and pension plans from the CRA, not from the City. Lyes was
disciplined, suspended and eventually terminated by the Executive Director of
the CRA, and that decision was upheld by the CRA Board, not by the City. All
of these circumstances establish that the CRA retained and exercised control over
the fundamental aspects of its employee relations.
own offices. It is true that the City provides the majority of the CRA’s funding, but we have already concluded here that the source of a governmental entity’s funding is a poor indication of whether it should be aggregated with another; in any event, the CRA still receives close to one- third of its funds from a source other than the City. 39 The panel below cited some evidence in support of its conclusion that the
CRA and City should be treated as a single employer. See 126 F.3d at 1386-87.
Of that evidence, two matters deserve discussion. First, the panel pointed to a
performance review of Lyes which was completed by the Executive Director on
a City form, listing the CRA as a department of the City. The performance
review was performed by Tony Smith, who was serving at the time as both City
Manager and interim Executive Director of the CRA. Given his dual duties, we
do not think the fact that he used City stationery has much, if any, significance.
State law cannot be amended by inferences drawn from printed forms.
Second, the panel noted that Neil Crilly, the CRA Executive Director,
sought review from the City’s personnel director of his decision to discipline
Lyes. We agree with the district court’s conclusion that there was no indication
that this review had any binding effect. Instead, it appears to have been an effort
to seek the opinion of a third party as to whether Crilly had acted fairly in
disciplining Lyes. In this sense, Crilly’s action is not unlike seeking advice from
an expert in employee relations.11
In reaching its conclusion, the panel also relied heavily on the NLRB 11
factors of common management and financial control. See 126 F.3d at 1387. We have already concluded, however, that these factors are not applicable to 40 Viewing the totality of the circumstances, we readily conclude that Lyes
has not produced evidence sufficient to allow a reasonable fact finder to conclude
that the presumption that the CRA and the City are separate entities is clearly
outweighed and that they should therefore be treated as a single employer under
Title VII.
F.
Having decided the issues upon which we granted en banc review, we
REMAND this case to the panel for further proceedings not inconsistent with this
decision.
governmental entities. 41 TJOFLAT, Circuit Judge, concurring in part and dissenting in part, in which BIRCH, Circuit Judge, joins:
This case requires us to interpret the scope of 42 U.S.C. § 1985(3). Two
possible interpretations will sustain the majority’s holding that the plaintiff in this
case has a prima facie claim. One is that Section 1985(3) applies to all
conspiracies involving sex-based discriminatory animus. The other is that it
applies to conspiracies involving sex-based discriminatory animus in which the
conspirators are state actors.12 The former interpretation is unconstitutional; the
latter interpretation is ridiculous. I therefore dissent.
I.
The broad reading of the majority’s holding is that any person injured by
a conspiracy to commit a tort arising out of sex-based animus has a cause of
12 The majority avoids choosing between these two interpretations by holding that “sex- based conspiracies against women are actionable under § 1985(3), and that where the conspiracies involve state action . . . Congress clearly had the constitutional authority to make them actionable.” Ante at ___. The majority thus reserves the question of whether all sex-based conspiracies against women are actionable under § 1985(3), or only those in which the conspirators are state actors. As I will demonstrate, however, neither interpretation can be sustained, and therefore the question reserved by the majority is nothing more than a choice between two erroneous statements of law. action under section 1985(3).13 Section 1985(3), as so interpreted, would be
beyond Congress’ power and thus unconstitutional.
The Supreme Court has warned us about “[t]he constitutional shoals that
would lie in the path of interpreting § 1985(3) as a general federal tort law.”
Griffin v. Breckenridge, 403 U.S. 88, 102, 91 S.Ct. 1790, 1798, 29 L.Ed.2d 338
(1971). A broad reading of the majority’s holding founders on those shoals.
Specifically, a rule that a conspiracy to commit a tort plus an injury plus sex-
based animus equals a section 1985(3) violation opens the door to substantial
federal intrusion into areas of law previously handled exclusively by state courts.
For instance, every rape involving more than one perpetrator would create a
federal cause of action – the underlying tort would be battery, and sex
discrimination would be inherent in the conduct. Every domestic abuse case in
which the abuser was somehow aided by a friend would be actionable under the
13 The statute creates a remedy for persons injured by a conspiracy to “depriv[e] . . . any person or class of persons of the equal protection of the laws.” 42 U.S.C. § 1985(3) (1994). The idea that an individual can deprive another individual of the equal protection of the laws is somewhat confusing. Our cases have made clear, however, that a person deprives another person of the equal protection of the laws by committing a tort – any tort – against that person. See United States v. Harris, 106 U.S. 629, 643, 1 S.Ct. 601, 612, 27 L.Ed. 290 (1883) (“The only way, therefore, in which one private person can deprive another of the equal protection of the laws is by the commission of some offense against the laws which protect the rights of persons, as by theft, burglary, arson, libel, assault, or murder.”); McLellan v. Mississippi Power & Light Co., 545 F.2d 919, 925 (5th Cir. 1977) (en banc).
2 statute. A gang of muggers who target women would also be amenable to suit
under the statute. Indeed, even a group of schoolboys who taunt a female
classmate during recess would be subject to suit under section 1985(3).14
The greatest potential intrusion, however, would be in the area of
workplace discrimination and sexual harassment. The federal courts are already
involved in these areas through Title VII. The reach of Title VII, however, is
limited in a variety of ways – for instance, it creates liability only for
“employers” as defined under the statute, see 42 U.S.C. § 2000e(b) (1994), and
requires an aggrieved party to file a complaint with the EEOC, see 42 U.S.C. §
2000e-5 (1994). The majority’s holding effectively casts aside these
limitations.15 Every employee who is fired because of her sex, assuming that
more than one person was involved in the firing decision, would have a federal
cause of action. Male employees who touch women inappropriately – and any
superiors who know about it and do nothing – could be held jointly and severally
14 I realize that if, under these factual scenarios, females were replaced with African Americans, there would be no question that section 1985(3) would provide the victims with a cause of action. As I demonstrate infra, however, there is a constitutional basis for applying section 1985(3) in cases of racial animus (the Thirteenth Amendment), while no such basis exists for extending the statute to cases of sex-based animus. 15 The potential use of section 1985(3) to get around the limitations of Title VII was explicitly criticized in Great American Federal Savings & Loan Ass’n v. Novotny, 442 U.S. 366, 375-76, 99 S.Ct. 2345, 2350-51, 60 L.Ed.2d 957 (1979).
3 liable if they acted in concert. Every group of men that makes vulgar comments
to women could be taken to federal court.16
This federal usurpation of state sovereignty implicates the core
constitutional idea of federalism. Under our constitutional system, the federal
government is a government of limited powers, and all powers not given to the
federal government are reserved to the states. See U.S. Const. amend. X.
Federalism requires that any law enacted by the federal government must be
grounded in a specific grant of power under the Constitution.
It is clear that section 1985(3) was enacted, at least in part, under Congress’
authority to eliminate the “badges and incidents” of slavery pursuant to section
2 of the Thirteenth Amendment. See U.S. Const. amend. XIII, § 2; Griffin, 403
U.S. at 104-05, 91 S.Ct. at 1799; see also Jones v. Alfred H. Mayer Co., 392 U.S.
409, 437-44, 88 S.Ct. 2186, 2202-05, 20 L.Ed.2d 1189 (1968) (describing
Congress’ Thirteenth Amendment powers). Congress’ authority under the
Thirteenth Amendment is limited, however, to the prevention of discrimination
16 The underlying torts in these three examples are, respectively, wrongful termination, battery, and intentional infliction of emotional distress.
4 on the basis of race. Thus, if we are to interpret section 1985(3) as preventing
sex discrimination, we must find some other constitutional grounding.
One possibility is to base 1985(3) on Congress’ power under section 5 of
the Fourteenth Amendment to enforce that amendment’s guarantee of equal
protection.17 See U.S. Const. amend. XIV, §§ 1, 5. The Equal Protection Clause,
however, is a guarantee of protection against unjust state action; it does not reach
the conduct of private individuals. Section 1985(3), under a broad reading of the
majority’s holding, would reach all individuals regardless of whether they are
private or public actors. Thus, section 1985(3), read broadly, cannot be grounded
in Congress’ power under section 5 of the Fourteenth Amendment.18
The other usual suspect for legislation of this sort is the Commerce Clause.
See U.S. Const. art. I, § 8. There are, however, at least four good reasons why
section 1985(3) cannot be grounded in Congress’ power to regulate interstate
17 In Griffin, the Supreme Court explicitly avoided the question of whether section 1985(3) was within Congress’ power under section 5 of the Fourteenth Amendment. See Griffin, 403 U.S. at 107, 91 S.Ct. at 1801. 18 The only way in which section 1985(3), read broadly, could be understood as being based on Congress’ section 5 powers is if Congress had concluded that state deprivations of equal protection were so rampant that, as an extreme prophylactic measure, it needed to pass a statute sweeping broadly enough to reach private individuals involved in any tortious behavior. The majority makes no showing – and I seriously doubt that it could make a showing – that this was the case.
5 commerce. First, there is nothing in the legislative history of section 1985(3) to
suggest that Congress was acting pursuant to that power. Second, there is
nothing in the statute itself that ties it to the Commerce Clause – it does not, for
instance, create a cause of action for only those conspiracies that affect interstate
commerce. Third, it is hard to imagine how private tortious behavior of the sort
that section 1985(3) prohibits (under a broad reading of the majority’s holding)
could – at least in most cases – reasonably be said to involve “Commerce . . .
among the several States.” U.S. Const. art. I, § 8; see also United States v.
Lopez, 514 U.S. 549, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995). Finally, the
Supreme Court has already unequivocally stated that section 1985(3) is not
grounded in the Commerce Clause. See United Brotherhood of Carpenters and
Joiners of Am. v. Scott, 463 U.S. 825, 833, 103 S.Ct. 3352, 3358, 77 L.Ed.2d
1049 (1983).
No other constitutional provisions appear to be colorable candidates. Thus,
I am forced to conclude that Congress does not have the authority to create a
remedy for all persons harmed by conspiratorial tortious conduct arising from
6 sex-based animus.19 Consequently, section 1985(3), insofar as it is interpreted
to create such a remedy, is unconstitutional.
II.
The majority’s holding may be read more narrowly to mean that section
1985(3), at least when applied to cases involving sex-based discriminatory
animus, covers only those conspiracies in which the conspirators are state actors.
Such a reading of the statute brings it within Congress’ Fourteenth Amendment
powers and thus avoids the constitutional problems outlined in the previous
section. However, it also reads a state action requirement into section 1985(3),
thereby contravening nearly every imaginable canon of statutory interpretation.20
The plain language of the statute says absolutely nothing about a state
action requirement.21 The statute does not use the terms “state actors,” “persons
19 As the majority points out, see ante at ___, a number of other circuits have interpreted section 1985(3) as providing a remedy in federal court for conspiracies arising out of a sex-based animus. None of these circuits, however, has explained whence Congress derives the authority to create such a remedy. 20 Indeed, such a reading of section 1985(3) would be so far removed from true statutory interpretation as to be nothing more than pure judicial activism, and consequently a violation of the constitutional doctrine of separation of powers. 21 Of course, the plain language of the statute also says nothing about discriminatory animus; nevertheless, the Supreme Court has read a discriminatory animus requirement into the
7 acting under color of state law,” or any other language that would suggest that
section 1985(3) applies only to agents of the state. Instead, the statute applies to
conspiracies involving “persons,” without qualification.22 Turning to the
legislative history, the statements of various representatives and senators
regarding the enactment of section 1985(3) clearly indicate that the statute’s
reach was in no way intended to be limited to state action – on the contrary, their
statements make clear that they deliberately chose to target “individuals”
(regardless of governmental affiliation) in contrast to states. See Griffin, 403
U.S. at 99-101, 91 S.Ct. at 1797-98.
statute. See Griffin, 403 U.S. at 102, 91 S.Ct. at 1798 (holding that proof of a violation of section 1985(3) requires a showing of “racial, or perhaps otherwise class-based, invidiously discriminatory animus behind the conspirators’ action”). This limitation on section 1985(3) – like the state action limitation that the majority suggests – was based on a need to keep the statute within Congress’ constitutional authority. See id. at 101-02, 91 S.Ct. at 1798. The discriminatory animus requirement, however, was well grounded in section 1985(3)’s legislative history. In contrast, as I will discuss in this section, the majority’s state action requirement is in direct conflict with the statute’s legislative history and the dictates of the Supreme Court. 22 The statutory language argument is made even more powerful when § 1985(3) is viewed in its original context. Section 1985(3) was enacted as § 2 of the Civil Rights Act of 1871, 17 Stat. 13. Section 1 of that Act – now codified as 42 U.S.C. § 1983 – explicitly requires that the alleged deprivation of constitutional rights be “under color of state law.” Not only does this indicate that Congress was perfectly capable of including a state action requirement if it so desired, but it also suggests a statutory scheme in which § 1 (now § 1983) was aimed at state action while § 2 (now § 1985(3)) was aimed primarily at private conduct. Under such a scheme, reading a state action requirement into section 1985(3) would radically undermine congressional intent.
8 Most importantly, the Supreme Court precedent interpreting section
1985(3) unequivocally forecloses any attempt to read a state action requirement
into the statute. In the words of that Court, “all indicators – text, companion provisions,
and legislative history – point unwaveringly to § 1985(3)’s coverage of private conspiracies.”
Griffin, 403 U.S. at 101, 91 S.Ct. at 1798; see also Scott, 463 U.S. at 834, 103 S.Ct. at
3359 (“[T]he Griffin opinion emphatically declared that [section 1985(3)] was
intended to reach private conspiracies that in no way involved the state.”). It
would be hard to imagine a more unequivocal statement that a plaintiff alleging
a violation of section 1985(3) need not allege state action.23
In sum, imposing a state action requirement on section 1985(3) is absurd.24
It is abundantly clear that the presence or absence of state action is completely
irrelevant to the existence of a claim under section 1985(3). It may be true that
Congress has the power, pursuant to section 5 of the Fourteenth Amendment, to
pass a statute providing a remedy for women injured as a result of a conspiracy
23 The majority opinion is notably bereft of precedent for the proposition that state action has any relevance in a section 1985(3) claim – because, at least after Griffin, there is no such precedent to be found. 24 I also note the patent inconsistency of reading a single statute as requiring state action in one situation (sex discrimination) but not another (race discrimination). Such a reading in essence converts section 1985(3) into two statutes – one for race-based animus that applies to all persons, and one for sex-based animus that applies only to state actors.
9 to commit a tort arising out of sex-based animus where the conspirators are state
actors. Section 1985(3) is not that statute. Therefore, the fact that the defendants
in this case are state actors provides no basis for a section 1985(3) claim by the
plaintiff.25
III.
The majority says that it will “leave for another day and case the issue of
whether [section 1985(3)] may be applied constitutionally to other sex-based
animus conspiracies [besides those involving state actors].” Ante at ___. The
majority fails to consider what will happen on that day and in that case. A
plaintiff complaining of sex discrimination will bring a section 1985(3) suit
against private persons; the court will be forced to decide whether the plaintiff
has stated a claim. If the court determines that the plaintiff has a claim, then it
25 The majority steadfastly resists the idea that it might be reading a state action requirement into section 1985(3). See ante at ___ n.2. This resistance results from a failure by the majority to consider the consequences of its reasoning. The majority’s reasoning seems to operate as follows: Section 1985(3) applies to all conspiracies motivated by sex-based animus; this may be unconstitutional as applied to private conspiracies, but the defendants lack standing to challenge the statute on that ground because they are state actors. Private defendants would of course have standing to raise such a challenge; if that challenge were successful, we would have created a scheme in which section 1985(3) could be used against state actors but not against private conspirators. I cannot see the difference between creating such a scheme and imposing a state action requirement on section 1985(3). The fact that the majority creates only half of the scheme today does not alter the nature of the scheme it is creating.
10 ignores the Constitution by sustaining a remedy that Congress did not have the
power to create. If the court determines that the plaintiff does not have a claim
because the defendants are not state actors, then that holding – combined with the
holding in this case – imposes a state action requirement on section 1985(3), in
blatant violation of statutory language, legislative history, and Supreme Court
precedent. There are no other options.
The majority boxes us into this corner by trying to decide this case without
defining the scope of section 1985(3). Section 1985(3) clearly covers
conspiracies (involving either private or public actors) motivated by race-based
animus. I leave open – as the Supreme Court has consistently done – the
possibility that some form of animus other than race-based animus may be
covered by the statute. See Bray, 506 U.S. at 268-69, 113 S.Ct. at 759; Scott,
463 U.S. at 836-37, 103 S.Ct. at 3360; Griffin, 403 U.S. at 102 n.9, 91 S.Ct. at
1798 n.9. I cannot, however, discern any reasoning that is true to both the statute
and the Constitution under which I may hold that section 1985(3) covers
conspiracies motivated by sex-based animus. I am therefore persuaded that the
plaintiff in this case does not have a prima facie case under section 1985(3).
11 Insofar as the majority holds that she does, I dissent. As for the remaining
portions of the majority opinion (Parts I and III), I wholeheartedly concur.
12 ANDERSON, Circuit Judge, concurring in part and dissenting in part:
I concur in all of Judge Carnes’ opinion for the court, except Part III.E. In
applying the new test for determining whether two state or local governmental entities
will be treated as a “single employer” under Title VII, I agree with Judge Kravitch (and
for the reasons she articulates) that there remain genuine issues of material fact, thus
making summary judgment inappropriate. Edmondson, Circuit Judge, concurring in part and dissenting in part, in which COX, BIRCH and DUBINA, Circuit Judges, join:
The Civil War came close to destroying the United States
forever. The War was a brutal physical contest, in which valor
was common on both sides. Our great nation was preserved,
but at a terrible price. For example, in the four years of the
War, the federal army of about 1,500,000 troops suffered
634,703 casualties (359,528 dead and 275,175 wounded).26 The
War also cost the federal government, at least,
$15,000,000,000. I doubt that we can today appreciate the
depth of feeling about sacrifice and about loss (tinged with
bitterness) that loomed over the country and Congress in the
decade following the War.
One issue over which the War had been fought was
slavery. The fate of slaves, recently freed at such severe cost
By way of comparison, a much more populous United States, 26
with a much larger military, fighting worldwide, suffered a loss of 292,131 dead in World War II. to the Union, was a great concern during the Reconstruction
era. Radical Reconstruction was rough for southern whites.
Some strongly resented the political influence of freed slaves
and of those persons working with freed slaves. There was
resistance, and organizations such as the Ku Klux Klan arose
in the South. These organizations engaged in terroristic
conduct. This conduct was aimed at intimidating the freed
slaves and their white allies. The allies were often former
union soldiers and mostly Republicans. These hard realities
made up the situation Congress (dominated by northern
Republicans) faced in 1871 when it enacted the Ku Klux Klan
Act, including what is now 42 U.S.C. § 1985(3).
Our job in construing a statute is to determine
congressional intent. In my view, 42 U.S.C. § 1985(3) is the
product of this concrete historical situation. The statute
speaks to the concerns of the situation. The text of the statute
must be interpreted in the context of this history. Most
2 important, it is the qualities of the text when it was written --
and not our response to it as modern readers -- that must be
our guide. In addition, what we personally might like this
statute to mean (or the law, in general, to be) in the light of
current circumstances and changed ideas has no rightful place
in our work: reinvention of the statute cannot properly be what
we are after.
The question today is whether 42 U.S.C. § 1985(3) extends
to cover persons conspired against because of their sex.27
Sexual discrimination was no issue in the Civil War or in
Reconstruction.28 And looking at the circumstances existing
27 This case concerns the scope of the cause of action made available by section 1985(3) to those injured by conspiracies formed “for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws.” 28 Plaintiff is a white woman. At its core, the section was intended to protect blacks and those who supported blacks; thus, white women, along with everyone else, are doubtlessly protected by the statute as long as they are being conspired against on account of helping a racial group. The question presented in this case then is 3 in 1871, I am unpersuaded that sexual discrimination was in
the mind of Congress when section 1985(3) was passed. The
language of the pertinent statute is pretty broad. But the
Supreme Court has already indicated -- in 1983 -- that neither
the language of section 1985(3) nor its legislative history
readily answers questions about the section’s scope. Despite
the statute’s language, “it is a close question whether section
1985(3) was intended to reach any class-based animus other
than animus against Negroes and those who championed their
cause, most notably Republicans.” United Bhd. of Carpenters
& Joiners v. Scott, 103 S. Ct. 3352, 3360 (1983) (construing
“intent of the 1871 Congress” and holding that section does
not reach conspirators motivated by bias against a group on
account of their economic views).29
not whether women are protected by the statute (they are), but whether the statute extends protection to women (or to anyone else) in this kind of case. 29 The Supreme Court in Scott was unpersuaded by a “plain- 4 Since 1983, no new information has come to light that
would make this court better informed about the intent of the
1871 Congress than the Supreme Court was informed in 1983.30
language” argument that conspiracies not based on race are included in 1985(3). So am I. The plain-language doctrine of statutory interpretation is usually best to determine the true intention of Congress, but judges usually are looking at statutes enacted by -- at least roughly speaking -- their own contemporaries. As contemporaries, we share with the pertinent Congress basically the same environment of circumstances and facts that surrounded the enactment of the statute; and when we see in the statute’s words an unambiguous plain meaning, we see that plain meaning in the light of our shared contemporary conditions. But as I have observed, “[w]hen . . . much older statutes are being construed by modern courts, our response as modern readers to the words of the statute may not be what the words meant to the Congress speaking at a very different time.” United States v. Steele, 147 F.3d 1316, 1320-21 (11th Cir. 1998) (en banc) (Edmondson, J., concurring). When we are looking at a statute that is almost 130 years-old, we know that, in the meantime, conditions and ideas have changed; the passage of time is enough to inject considerable uncertainty in my mind about the meaning of what the 1871 Congress said with the statute. Just reading the words today is not enough to know what the words used in 1871 meant to that Congress. Congress’s intent at the time of the statute’s enactment cannot be reliably ascertained without taking into account the historical context of the statute. I do not say that the Supreme Court’s words in Scott can be 30
read as a holding which is binding on us, but the Court’s words have 5 consequence. Furthermore, I agree with the Supreme Court. The arguments made to support a construction of 1985(3) to extend beyond race are not compelling. Some argue that the section’s protections track the protections of the Equal Protection Clause of the Fourteenth Amendment, which the Supreme Court has construed to go beyond race. But, section 1985(3) does not actually say (although it could have done so à la 42 U.S.C. § 1983) that it incorporates the Fourteenth Amendment or the Constitution. And the Fourteenth Amendment was enacted by a different Congress (the 39th) than the Congress (the 42d) that enacted section 1985(3): words can mean different things to different Congresses. In addition, the Supreme Court has already said that “Equal Protection Clause jurisprudence is [not] automatically incorporated into § 1985(3).” Bray v. Alexandria Women’s Health Clinic, 113 S. Ct. 753, 761 n.4 (1993). Even if one accepts that the Congress in 1871 intended the words in section 1985(3) to mean the same thing as the Equal Protection Clause, it would seem that the intention would be that the section’s words mean the same thing as the Equal Protection Clause’s words were understood to mean in 1871, which may well be different than what we understand the Clause to mean today. Furthermore, section 1985(3) was enacted -- at least in substantial part -- on the basis of the Thirteenth Amendment, which deals directly with the badges and incidents of “slavery.” Others point out bits of legislative history that they say show a broader intent. The legislative history -- which is filled with references to freed slaves and their supporters and to the Klan -- is long. The bits that might be said to point beyond race are very few and short. And, the statements of individual legislators are not ordinarily given controlling effect. See, e.g., Brock v. Pierce County, 106 S. Ct. 1834, 1840-41 (1986). Some others say that, even if it is true that the 1871 Congress 6 did not have in mind discrimination against persons other than black people when Congress enacted section 1985(3), it is proper to extend the statute to cover reasonably comparable evils. They cite Oncale v. Sundowner Offshore Services, Inc., 118 S. Ct. 998 (1998). Oncale decided that a statute that undoubtedly was enacted to prohibit sexual discrimination reaches all kinds of sexual discrimination, including male-on-male discrimination. I say the Oncale reasoning would allow section 1985(3) to reach all kinds of racial discrimination and not just discrimination against black persons, although former slaves were precisely who Congress had in mind. But Oncale’s reasoning does not license federal courts to start including a whole new category of discrimination within a statute’s coverage if Congress did not have that kind of discrimination in mind at all. Never has the Supreme Court decided whether section 1985(3) extends beyond race to sex. Therefore, stare decisis and similar doctrines -- which require courts to stand by previously decided matters -- can dictate nothing to us. Still, some people take what they might call a realist view, observing that several of the present members of the Supreme Court have individually said -- at one time or another -- that 1985(3) does cover conspiracies other than those based on race. These “realists” see the handwriting on the wall. They predict the Supreme Court ultimately will extend the statute to conspiracies based on sex and say, therefore, that lower courts should take the step now. I think that predicting what the Supreme Court will do in the future is hard. Justices are not bound by their statements in concurrences or dissents or in decisions while serving on lower courts. More important, our judicial duty, as I understand our promises, is to study section 1985(3) using the usual legal methods and to decide the case accordingly and independently. The job of a United States Circuit Judge is not just to bet on which way the Supreme Court will come down later. I think the nonbinding 7 The legislative-history equivalent of the Dead Sea Scrolls has
not been discovered or called to our attention. When we are
construing statutes and, therefore, congressional intent, we
must never allow guessing to masquerade as interpretation.
Also we, as judges, must always know what we do not know.
In my view, we cannot know with reasonable certainty that the
1871 Congress intended to reach conspiracies other than
those based on race.
To extend section 1985(3) to cover persons conspired
against because of their sex would represent an important
decision on public policy. This kind of public-policy decision
is beyond our legitimate power when the congressional intent
is so unclear. An ancient legal maxim says that “where you
doubt, do nothing.”31 I think we should do nothing here. We
observations of individual Supreme Court justices are not so much to be counted by us, as they are to be weighed. Quod dubitas, ne feceris. S.S. Peloubet, Legal Maxims 253 31
(1985); Black’s Law Dictionary, 1127 (5th Ed. 1979). 8 should not err on the side of an innovative expansion of an old
statute. To do so is not just a mistake of principle, it is
dangerous. “The federal balance is a fragile one, and a false
step in interpreting § 1985(3) risks making a whole catalog of
ordinary state crimes a concurrent violation of a single
congressional statute passed more than a century ago.” Bray
v. Alexandria Women’s Health Clinic, 113 S. Ct. 753, 768 (1993)
(Kennedy, J., concurring).
I believe that we do our duty when we admit that we do not
know whether certain conduct was intended by Congress to be
covered by a statute or not. We cannot properly do more in
this case. I accept the principle that Congress and the
President -- political officers elected by the American people --
should decide public policy questions, such as the one
underlying this case. The political branches (and not the
judicial branch) should decide whether a federal statute --
along the lines of 42 U.S.C. § 1985(3): that is, a statute directed
9 largely towards private conduct and without expressed limits
tied to state action, interstate commerce, federal funding and
so on -- is fitting and needed to cover persons conspired
against on account of their sex.32
When I disagree with the court, I commonly file no dissent.
Dissenting is rarely the best use of the judge’s time and
energy. Dissents can also be counterproductive in other ways.
If the legal principles involved seem to me to be important
enough, I may write something, however. Even then, because
my dissent will govern no one (not even me) while the court’s
opinion will govern everyone in three states, I sincerely hope
that the court’s view of the case is the correct one -- setting out
the true law -- and that my view is the incorrect view. I know
32 By the way, although the Supreme Court signaled in 1983 that it was by no means clear that section 1985(3) reached beyond race, Congress in 1991 -- when it amended many civil rights statutes -- did not expand the section to make it plain that nowadays the section’s coverage ought to go beyond race. But Congress has enacted other statutes that prohibit discrimination on the basis of sex in a number of specific contexts. 10 that my colleagues’ motives are good. But for the reasons I
have tried to explain briefly, I cannot today go along
completely.
I concur in this court’s opinion and judgment, except the
part about 42 U.S.C. § 1985(3).
11 HULL, Circuit Judge, concurring specially:
I concur in all of the majority opinion including the entire section addressing
the § 1985(3) issue. I write separately only to emphasize my view that, on the
§1985(3) issue, we do not write on a clean slate. It is true, as the dissents point out,
that the Supreme Court’s decisions in Griffin v. Breckenridge, 403 U.S. 88 (1971),
United Brotherhood of Carpenters and Joiners of America v. Scott, 463 U.S. 825
(1983), and Bray v. Alexandria Women’s Health Clinic, 506 U.S. 263 (1993) do not
expressly hold that § 1985(3) protects against conspiracies motivated by a gender-
based animus. However, the Supreme Court has strongly indicated that the broad
language of § 1985(3) prohibits gender-based conspiracies. In my view, the Supreme
Court’s direction on this issue is unmistakable to the point that no principled way
exists for this Court to hold, as suggested by the dissents, that § 1985(3) prohibits
only conspiracies motivated by racial animus.
In Griffin, the Supreme Court recited its interpretation of the broad language
in § 1985(3). The Court held that to prove a § 1985(3) violation, a plaintiff must
show “some racial, or perhaps otherwise class-based, invidiously discriminatory
animus” behind the conspirators’ actions. Griffin, 403 U.S. at 102. In Griffin, the
Court expressly reserved the question of whether § 1985(3) applied to conspiracies
motivated by invidious intent other than race. Griffin, 403 U.S. at 102 n.9.
Nonetheless, as the majority in this case cogently observes, for the Court’s language “otherwise class-based, invidiously discriminatory animus” to have any meaning,
“otherwise class-based . . . animus” must include animus directed against women –
or men for that matter.
Quite to the contrary of the inferences drawn by the dissents, in my view,
Griffin, Scott, and Bray, provide strong guidance that the Supreme Court views §
1985(3) as encompassing gender-based conspiracies. Each of these cases presented
the Court with the opportunity to limit the reach of §1985(3) to only conspiracies
motivated by racial animus. That the Court declined all three of these opportunities
speaks loudly.
Griffin involved a racial conspiracy. As a race case, Griffin presented the
perfect opportunity for the Court to suggest that § 1985(3) was intended solely to
protect African Americans. Indeed, Griffin did not require the Court to discuss the
scope of § 1985(3) beyond holding that it prohibited conspiracies motivated by a
racial animus. Nevertheless, the Court made its pronouncement that § 1985(3)
required a showing of “some racial, or perhaps otherwise classbased, invidiously
discriminatory animus.” Griffin, 403 U.S. at 102. The Court’s reasoning behind this
statement is apparent. Obviously, § 1985(3) was intended, first and foremost, to
address the plight of African Americans during Reconstruction, but the language used
2 in the statute suggests that it encompasses a broader range of conspiracies – thus, the
phrase “otherwise class-based, invidiously discriminatory animus.”
Likewise, in Scott, the Supreme Court declined again to interpret § 1985(3) as
prohibiting only race-based conspiracies. As noted by the majority in the instant
case, the Court in Scott held that § 1985(3) does not prohibit “conspiracies motivated
by economic or commercial animus.” 463 U.S. at 836. In doing so, the Court recited
legislative history supporting the notion that “[t]he predominate purpose of § 1985(3)
was to combat the prevalent animus against Negroes and their supporters.” Id.
Despite the Court’s emphasis of this legislative history, the Court declined the
opportunity to limit the applicability of § 1985(3) to race-based conspiracies.
Moreover, Bray presents the clearest illustration of the Supreme Court’s
implicit recognition that § 1985(3) prohibits conspiracies motivated by a gender-
based animus. In Bray, the Court addressed the issue of whether opposition to
abortion constitutes “class based, invidiously discriminatory animus.” 506 U.S. at
269. The district court in Bray had concluded that such a conspiracy amounted to
discrimination against the “‘class’ of women seeking abortions,” and the plaintiffs
argued that opposition to abortion included an animus against “women in general.”
Id. Obviously, the Court’s easiest and most direct path to reversing the district court,
and rejecting the plaintiffs’ argument, would have been to hold simply that § 1985(3)
3 does not prohibit gender-based conspiracies. However, the Court did not follow this
path.33 Instead, Justice Scalia’s majority opinion undertook a protracted, detailed
analysis to reject the conclusion that opposition to abortion equates with
discrimination against women. The Court’s opinion in Bray reflects the unavoidable
facts that (1) § 1985(3)’s broad language does not itself suggest that it is limited only
to race-based conspiracies and (2) the Supreme Court’s statement in Griffin that §
1985(3) requires proof of a “class-based animus” recognizes the broad sweep of the
protection afforded by § 1985(3).
In the instant case, the dissents do not sufficiently heed the Supreme Court’s
guidance on this issue. One dissent admonishes that “[t]he job of a United States
Circuit Judge is not just to bet on which way the Supreme Court will come down
later.” Similarly, the other dissent describes this issue simply as “open.”
In my view, interpreting Griffin, Scott, and Bray as providing strong guidance
on this issue does not involve betting “on which way the Supreme Court will come
down later,” nor is this issue simply “open.” Instead, the majority’s conclusion that
gender is a class protected under § 1985(3) is the only holding that follows in a
principled way the Court’s statement in Griffin and its reaffirmation of this statement
33 Importantly, in none of the five separate opinions in Bray did any of the Justices opine that gender-based conspiracies were beyond the reach of § 1985(3).
4 in Scott and Bray. The lack of a direct holding leaves this Court at best “wiggle
room” to write around the Court’s statement in Griffin. However, Griffin, Scott, and
Bray, in my opinion, direct us to the path to follow in § 1985(3) cases, and stare
decisis dictates that we should follow it – until the Supreme Court tells us otherwise.
In this regard, I note Justice Souter’s observation in his opinion in Bray that “I know
of no reason that would exempt us from the counsel of stare decisis in adhering to
this settled statutory construction . . . which Congress is free to change if it should
think our prior reading unsound.” 506 U.S. at 289 (Souter J., concurring in part and
dissenting in part).
Griffin, Scott, and Bray have guided seven circuits to conclude that § 1985(3)
embraces suits premised on gender-based conspiracies. Likewise, this Supreme
Court precedent is why four Supreme Court Justices have stated recently their views
that § 1985(3) encompasses gender-based conspiracies. Bray, 506 U.S. at 295
(Souter, J., concurring in part and dissenting in part) (“To be sure, there is some
resonance between Griffin’s animus requirement and those constitutional equal
protection cases that deal with classifications calling for strict or heightened scrutiny
. . . [such as] race, national origin, alienage, gender, or illegitimacy.”); Bray, 506 U.S.
at 319 (Stevens, J., dissenting) (“The text of the statute provides no basis for
excluding from its coverage any cognizable class of persons who are entitled to the
5 equal protection of the laws.”); Bray, 506 U.S. at 348 (O’Conner J., dissenting) (“I
would . . . find in today’s case that §1985(3) reaches conspiracies targeted at a
gender-based class . . . .”); Great American Federal Savings and Loan Assn. v.
Novotny, 442 U.S. 366, 389 n.6 (1979)(White, J., dissenting) (“It is clear that sex
discrimination may be sufficiently invidious to come within the prohibition of
§1985(3).”). I agree with the majority that we are required to join the seven circuits,
and the four Justices, to conclude that § 1985(3) prohibits gender-based
discrimination.
Finally, I am sensitive to the sound policy arguments raised in Judge Tjoflat’s
dissent. Nevertheless, the Supreme Court has offered clear guidance on this issue,
and I do not believe that the Supreme Court’s pronouncements can be avoided in any
principled way.
For these reasons as well as those articulated in the majority’s opinion, I
concur.
6 Kravitch, Senior Circuit Judge, concurring in part and dissenting in part:
I concur in Part I of the majority opinion, which reinstates that portion of the
panel opinion remanding the case to the district court for reconsideration of the
section 1983 claim because Lyes’s pleadings were sufficient to provide the district
court and the appellees with notice that she alleged a violation of the Equal Protection
Clause of the Fourteenth Amendment. I also concur in Part II of the majority
opinion, in which this court joins every other circuit that directly has decided the
issue in holding that 42 U.S.C. § 1985(3) prohibits sex-based conspiracies, at least
where the conspirators are acting under color of state law. With respect to Part III,
however, I dissent in part.
I. The New Public Single Employer Test
In Part III, the majority formulates a new test for determining whether two
ostensibly independent state or local government entities should be considered a
“single employer” for Title VII purposes. It then finds that the district court properly
granted summary judgment in favor of the appellees on Lyes’s Title VII claim
because Lyes did not produce evidence sufficient for a reasonable factfinder to
conclude that the City of Riviera Beach Community Redevelopment Agency (the
“CRA”) and the City should be aggregated under this new public single employer
test. Before articulating the new standard for deciding whether governmental
entities should be consolidated under Title VII, the majority considers but rejects the
four-factor test that the National Labor Relations Board (“NLRB”) applies to decide
whether to aggregate ostensibly separate private employers.34 I would have preferred
that this court adopt the NLRB test regardless of whether the entities in question are
public or private. Although the NLRB originally adopted this four-factor test in the
context of deciding which private employers it would subject to its jurisdiction in
labor relations disputes, see Radio & Television Broad. Technicians Local Union
1264 v. Broadcast Serv. of Mobile, Inc., 380 U.S. 255, 256, 85 S. Ct. 876, 877
(1965), in McKenzie v. Davenport-Harris Funeral Home, 834 F.2d 930 (11th Cir.
1987), we joined the majority of circuits in applying this test in the Title VII context
in cases involving private entities.35 For the reasons described below, I would have
extended the application of the NLRB test to Title VII suits against government
employers, as well.
34 These four factors are (1) interrelation of operations; (2) centralized control of labor relations; (3) common management; and (4) common ownership or financial control. See, e.g., Radio & Television Broad. Technicians Local Union 1264 v. Broadcast Serv. of Mobile, Inc., 380 U.S. 255, 256, 85 S. Ct. 876, 877 (1965). 35 The Second, Fifth, Sixth, Eighth, Ninth, and Eleventh Circuits all employ the NLRB test to determine whether private entities should be aggregated for Title VII purposes. See Majority Op. at ___. The Tenth Circuit “ha[s] yet to adopt the [NLRB] single employer test, having found it unnecessary in several cases to resolve the issue definitively,” but it has not rejected the test. Lockard v. Pizza Hut, Inc., Nos. 97-7027, 97-7078, 1998 WL 863978, at *5 (10th Cir. Dec. 14, 1998). The remaining circuits apparently have not addressed this issue.
2 As the majority recognizes, the Supreme Court specifically has held that Title
VII principles and standards apply with equal force to private and public employers.
See Majority Op. at ___. Federal courts have been using the NLRB test in Title VII
cases involving private entities for more than 20 years,36 and therefore have
developed continuity and expertise in applying it. Creating a different test for
deciding whether to consolidate public employers, who must abide by the same Title
VII rules as private employers, requires the courts to start again, evolving and
shaping a new standard. Given the flexibility of the existing single employer test,
this approach is unnecessary. The NLRB test is not a strict formula, but instead
embodies factors commonly recognized to characterize coordinated enterprises. It
acknowledges that no two operations are exactly alike; therefore, as the majority
points out, “[c]ourts applying the NLRB ‘single employer’ test to private entities in
Title VII cases have held that not every factor need be present, and no single factor
is controlling.” Majority Op. at ___ n.4 (citing three cases recognizing this
proposition).
A number of courts already have demonstrated that the NLRB test can be
applied to government employers with little difficulty. See Riley v. County of Pike,
36 The Eighth Circuit was the first court to use this test to decide whether two employers should be aggregated under Title VII. Baker v. Stuart Broadcasting Co., 560 F.2d 389 (8th Cir. 1977).
3 761 F. Supp. 74, 76-77 (N.D. Ind. 1989) (holding, in age discrimination case under
ADEA, that “same considerations are pertinent” when deciding single employer issue
for public entities as for private entities and applying NLRB test to resolve the
question; noting that where government entities are concerned, court also must keep
constitutional separation of powers issues in mind); Vandermeer v. Douglas County,
15 F. Supp. 2d 970, 975-79 (D. Nev. 1998) (conducting extensive analysis, using
NLRB four-factor test, to decide whether Fire and Paramedic Districts and County
should be aggregated for Title VII purposes; noting that fact that state might consider
the entities to be separate was relevant but not controlling). In my view, all of these
advantages outweigh the slight awkwardness created in the public employer context
by the labeling of the fourth factor of the NLRB test—common ownership or
financial control—which admittedly is more helpful in our analysis of the
relationship between parent and subsidiary corporations than governmental bodies.37
37 This minor obstacle, however, has not hindered district courts that have employed this test where aggregation of government entities was at issue. For example, in Vandermeer, the court applied this element of the test by considering sub-factors such as ability to raise revenue, division of funds, independence of property ownership, separation of accounting records, and payment of bills and debts. 15 F. Supp. 2d at 978. This approach is not unlike that taken by the panel in this case, which, in analyzing the fourth factor, recognized the extensive intermingling of CRA and City funds, including the facts that the CRA received two-thirds of its budget, and, on one occasion, an interest-free loan, from the City. See Lyes v. City of Riviera Beach, 126 F.3d 1380, 1387 (1997), opinion vacated and reh’g en banc granted, 136 F.3d 1295 (11th Cir. 1998).
4 The majority also contends that the third factor of the NLRB single employer
test—common management—is an inappropriate consideration in the government
entity aggregation context. I disagree. The majority explains its rejection of the third
factor by stating that “[w]hile [the common management factor] may be an
appropriate yardstick in some instances, in others two public entities may share
managers or other employees while remaining politically separate and distinct.”
Majority Op. at ___. This reasoning is circular: the fact that the sharing of personnel
may not justify, in some situations, aggregation under Title VII does not mean that
courts should simply ignore the common management factor in every case. Again,
under the NLRB test, no one factor controls the outcome of the “single employer”
analysis in a given case.
Upon rejecting the NLRB test as an inappropriate standard for deciding when
government entities should be aggregated for Title VII purposes, the majority
formulates a new test for making this determination. In large part, this test mirrors
the NLRB standard. After holding that comity and federalism considerations require
us to defer to Florida’s delineation between the CRA and the City in this and other
cases in which a state has designated the relevant political bodies as separate
5 entities,38 the majority recognizes that courts still may find that purportedly
independent government bodies should be considered a single employer under Title
VII. A plaintiff can show that aggregation of public entities is appropriate either by
proving that the state created the “separate” units to evade federal law or by
demonstrating “other factors” “plainly indicat[ing] integration” of the entities.
Majority Op. at ___.
In deciding what factors courts should assess under this new public single
employer test, the majority looks to “the factors courts have considered in Title VII
cases involving private employers”—primarily the NLRB factors. Majority Op. at
___. The majority focuses upon “centralized control of labor relations” (NLRB
factor 2) as the dominant consideration of the public single employer test;39 it also
cites “interrelation of operations” (NLRB factor 1) as an important component of this
analysis. Id. The majority concludes by observing that the factors it mentions are not
38 The majority summarizes the first step in the new standard it promulgates as follows: “we begin with the presumption that governmental subdivisions denominated as separate and distinct under state law should not be aggregated for purposes of Title VII.” Majority Op. at ___ (emphasis added). This formulation echoes the concerns the majority repeatedly expresses regarding the implications of federalism and comity where the state legislature has delineated government entities as separate from one another. As I read the majority opinion, therefore, this presumption only applies in a situation, such as the one before us in this case, in which the state legislature created the entities in question as “independent legal bodies.” Majority Op. at ___. 39 Courts frequently have observed that under the NLRB test as applied in the Title VII context, this factor should receive the most weight. See Barbara Lindemann & Paul Grossman, Employment Discrimination Law 1310 (Paul W. Cane, et al., eds., 3d ed. 1996).
6 exhaustive. Id. Thus, despite my preference for extending the NLRB test to govern
the aggregation analysis for public as well as private employers, because the
standard that the majority has developed significantly parallels the NLRB test, I do
not dissent from its adoption.
II. Applying the New Test
Applying the majority’s public single employer analysis, and accepting the
presumption that test creates that the CRA and the City should not be aggregated for
Title VII purposes,40 I dissent from the majority’s conclusion that summary judgment
was proper in this case. Looking first at the two NLRB factors still viable under the
new test, the record shows that Lyes presented significant evidence that the City and
CRA had interrelated operations and that the City controlled decisions regarding the
CRA’s employees. As the panel opinion pointed out, the record contains several
pieces of evidence from different sources indicating that the City treated the CRA
merely as one of its departments. These items include the CRA bylaws, which, at
least until one month before Lyes’s termination, obligated the CRA Executive
Director to report to and coordinate the CRA agenda with the City Manager;41 a
widely published advertisement for the City Manager position seeking applicants
40 See supra note 5 and accompanying text. 41 The parties introduced two different versions of the CRA bylaws. Lyes’s version contained this language, but the appellees’ version, marked “Revised 11/17/93,” did not.
7 with experience directing departments of a full service municipality and CRA; and
a written performance review of Lyes by Tony Smith, the City Manager/CRA
Executive Director, appearing on a City form and listing the CRA as a department of
the City.42
Multiple indicia of City control over CRA employment decisions also appear
in the record. As mentioned above, Smith’s evaluation of Lyes’s performance on a
City form and possibly in his capacity as City Manager,43 and the CRA bylaws’
requirement that the CRA Executive Director report to the City Manager, raise
questions about whether the CRA independently managed its staff during Lyes’s
period of employment. Additionally, the Executive Director’s request that the City
personnel director review his decision to discipline Lyes and the City attorney’s
participation in the CRA Board’s hearing considering Lyes’s petition for
42 The majority finds this last piece of evidence to be of little or no significance given Smith’s dual role at the time. In downplaying the importance of this incident, the majority ignores the fact that Smith listed the CRA as a “department” of the City on the form, a detail with broader implications in terms of the level of CRA/City integration than a simple error in choosing the wrong sheet of paper to complete an evaluation. The majority also improperly weighs this evidence: it is up to the factfinder—not this court—to decide the significance of Smith’s commingling of Ciry and CRA activities. Although it is possible to infer from the written performance review that Smith mistakenly picked up a City form, or perhaps that he had run out of CRA stationery, and incorrectly listed “CRA” as a “department” without realizing the potential consequences of that act, it is also quite plausible that Smith himself was confused about the division of his duties as City Manager and Executive Director of the CRA. The latter scenario strengthens Lyes’s argument that the City and CRA were one integrated organization for Title VII purposes. 43 See supra note 9 and accompanying text.
8 reinstatement could support Lyes’s position on the single employer issue.44 With
respect to the majority’s observation that which entity had the obligation to pay the
charging party’s salary could affect this analysis, the factfinder also could take into
account the CRA’s budget, two-thirds of which the City supplies.
Finally, the majority acknowledges that the public single employer test
requires us to consider the totality of the circumstances. Although the NLRB
common management factor is not an element of our analysis under this test, I see no
reason for the court to ignore the reality of the situation presented in this case by
refusing to acknowledge the identical composition of the respective policymaking
bodies of these entities—the City Council and the CRA Board—and, for eighteen
months, the role of Tony Smith as both City Manager and CRA Executive Director.
The Florida statute’s designation of the CRA as a legal entity separate and
independent from the City may have presumptive weight under our new public single
44 Again, the majority inappropriately weighs this evidence when it concludes that “there was no indication that this review had any binding effect. Instead, it appears to have been an effort to seek the opinion of a third party as to whether [the Executive Director] had acted fairly in disciplining Lyes. In this sense, [it] was not unlike seeking advice from an expert in employment relations.” Majority Op. at ___ (emphasis added). This reasoning is highly speculative. No evidence regarding the impact of this review appears in the record, and therefore its effect on the aggregation question is an issue for the factfinder. Nor does the record indicate the reason the Executive Director asked for the review; thus, the purpose for which he sought the personnel director’s opinion also was a matter for the factfinder to decide. There simply is no basis in the record from which unequivocally to conclude that when the city personnel director reviewed Lyes’s discipline, he provided nothing more than non-binding, independent expert advice to the Executive Director.
9 employer test, but the fact that the state statute permits the City Council and the CRA
Board to have the same members does not exempt that arrangement from review. At
the very least, a factfinder should scrutinize this system to evaluate the degree to
which these officials were able to keep their two roles separate.
Unquestionably, some information in the record points to the conclusion that
the City and the CRA were sufficiently distinct that we should not aggregate them for
purposes of Title VII. Because the majority opinion catalogs this evidence, see
Majority Op. at ___, I see no need to discuss it again here. Considering all of the
evidence—and all reasonable inferences that can be drawn from it—in the light most
favorable to Lyes, as we must for summary judgment purposes, however, a
reasonable factfinder could determine that Lyes clearly overcame the presumption
in favor of appellees on the single employer issue, thus making summary judgment
inappropriate. As to the majority’s conclusion to the contrary, I therefore respectfully
dissent.
Lyes v. City of Riviera Beach, FL (Lyes v. City of Riviera Beach, FL) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.