mark East v. Clayton Coumty, GA

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 10-15749 ELEVENTH CIRCUIT
Non-Argument Calendar AUGUST 1, 2011
________________________ JOHN LEY
CLERK
D.C. Docket No. 1:09-cv-00260-RWS
MARK EAST,
Plaintiff-Appellant,
versus
CLAYTON COUNTY, GEORGIA,
a Subdivision of the State of Georgia,
ALEX S. COHILAS,
Fire Chief, in His Official and Individual Capacity,
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
________________________
(August 1, 2011)
Before HULL, PRYOR and FAY, Circuit Judges.
PER CURIAM:
Mark East, a firefighter in his forties, appeals the district court’s grant of
summary judgment to his former employer, Clayton County (the “county”), and
the Fire Chief of Clayton County, Alex Cohilas, (collectively “defendants”), as to
his age discrimination claim under the Age Discrimination in Employment Act of
1967, 29 U.S.C. § 621, et seq. (“ADEA”), and his procedural due process claim
under 42 U.S.C. § 1983. East was placed on unpaid administrative leave based on
allegations that he started rumors that Cohilas misused funds and the Assistant
Fire Chief, Jeff Hood, received a driving under the influence (“DUI”) charge. East
first argues that he submitted direct evidence of the Cohilas’s discriminatory intent
against him through the affidavits of other firefighters. Second, concerning
circumstantial evidence, East contends that he met the prima facie case for age
discrimination by presenting evidence that younger employees were treated more
favorably than him. Finally, East argues that, because his state remedy was
inadequate, he could pursue his procedural due process claim for a civil service
hearing under § 1983 in federal court. For the reasons set forth below, we affirm
the district court’s grant of summary judgment to the defendants as to these claims.
I.
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East began employment with the county as a firefighter on May 9, 1988, had
20 years of experience with the county fire department, and had attained the rank
of lieutenant by the time he was placed on administrative leave without pay on
February 14, 2008. As lieutenant, East was the highest ranking officer at his
station. He supervised five firefighters at Station Seven, C-shift, including
Sergeant Rodney Hakeem and Firefighter Duel Lee. East’s chain of command
included, in ascending order, Battalion Chief Jeff Thomas, Deputy Chief of
Operations Andy Condrey, Hood, and Cohilas.
According to Hakeem, on January 12, 2008, East asked Hakeem if he “had
heard about ‘the Chiefs yet?’” Hakeem responded that he had not and walked
away. On January 15, 2008, Lee approached Hakeem and asked if he had heard
any rumors about Cohilas. East, overhearing their discussion, walked over and
voluntarily shared that Cohilas was due to be terminated as a result of misusing
funds and that Hood’s job was in peril due to a DUI charge. Later that same day,
East “gleefully” reported to Lee and Hakeem that “Car 1 and Car 2 are gone.”
Hakeem contacted a trusted officer in the department to verify East’s report that
Cohilas and Hood were terminated, was told it was false, and then confronted East
about it. However, East continued to assert that the rumor was true. Hakeem was
around 40 years old at the time these events occurred.
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When Cohilas heard this information, he was particularly troubled that a
lieutenant would make such an untruthful statement to his subordinates and then
continue to insist that the lie was true. To Cohilas, such behavior from a
lieutenant “undermine[d] the credibility of the entire department.” He ordered an
investigation into East’s actions, but did not directly participate in the initial
interviews. On January 18, 2008, Hood, Condrey, and Thomas interviewed East
and his five crew members on Shift C to investigate the rumors. After reviewing
the progress of the investigation, Cohilas felt that East had made very specific
statements to Hakeem and Lee regarding the misuse of funds and DUI allegation,
and that East still had not definitively identified when or from whom he first
learned of these rumors.
Cohilas, Condrey, Hood, and Thomas met with East again on February
14, 2008, to continue the investigation. According to Cohilas, at that meeting,
East told Cohilas that he had first heard the rumor about Cohilas from either
Sergeant David Wilson or retired officer Ray Banks. But Cohilas said that, when
pressed, “East was evasive and contradictory.” East also told Cohilas that he
could not recall discussing the rumor about Hood with either Wilson or Banks. He
admitted telling Hakeem and Lee that Hood had been terminated for a DUI charge,
but could not explain where he heard that rumor. Cohilas told East that he did not
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believe him, and it appeared that East was the only source of the specific rumor
about Hood allegedly receiving the DUI charge. Cohilas said that East did not
offer a defense in response. Cohilas placed East on temporary unpaid
administrative leave, during which East could use sick and annual leave time,
pursuant to Civil Service Rule 5.458, while Cohilas continued to investigate the
issue. East stated that he realized at that meeting that the command staff did not
believe him that he was not the source of the rumors. East admitted that his age
was never mentioned in any of the meetings concerning the investigation, and East
was not aware of Cohilas saying anything to him or anyone else about East’s age.
East was directed to return to work on February 26, 2008, but did not do so
because he wanted to seek medical attention about some problems he was
experiencing.
According to a memorandum from Condrey to the file dated February 15,
2008, § 3.11.2 of the county fire department employee manual provided that “[n]o
member of the department shall knowingly or carelessly slander, make false
accusations about or repeat unsubstantiated rumors about other individuals,
violations of this rule may result in disciplinary action up to and including
termination.” Pursuant to Civil Service Rule 5.458, an employee who is accused
of a violation, which if true would likely result in suspension or dismissal, may be
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placed on unpaid administrative leave. Further, the rule provides that “[t]he
unpaid administrative leave shall remain in effect while the subject matter is under
investigation, however, the same shall not exceed four (4) weeks absent without
approval of the [county] Board [of Commissioners].”
East sent a grievance letter to Renee Bright, the Human Resources Director
for the County Board of Commissioners, on February 18, 2008. The letter stated
that it was a “formal grievance” related to his unpaid administrative leave, that
hewas being “harassed” and “badgered and falsely accused” of circulating rumors,
and that he believed “his due process rights [were] being violated.” East requested
that the matter be investigated and that he “be placed on paid administrative leave
pending resolution of the matter.”
On February 26, 2008, the personnel department received a note from East’s
doctor, stating that East could not return to work or communicate with anyone at
work, but not specifying when he would be able to return. On February 28, 2008,
East received a letter from the county’s personnel department stating that he was
placed on leave under the Family Medical Leave Act, starting on February
25, 2008.
According to Bright, she interpreted East’s letter to be a grievance under
Civil Service Rule 11.200. She stated that a grievance procedure is intended to
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assist parties to resolve problems informally. Bright did not believe that pursuing
a grievance resolution was practical with East being out on medical leave
indefinitely and the fire department’s uncompleted investigation. It was Bright’s
understanding that Cohilas would not be able to complete the investigation until
East returned to work.
Pursuant to Civil Rule 11.202, “[e]mployee grievances should, insofar as
possible, be [addressed] informally. However, it is recognized that there will be
occasional grievances which can be resolved only by means of a systematic review
conducted in accordance with the provisions of a formal grievance procedure.”
The formal procedure requires the employees to present their grievances first to
their immediate supervisor, then the department head, and then to the personnel
director only after they feel that those grievances have not been satisfactorily
heard or resolved at the previous levels. The rule further provides that “[i]f
necessary, an informal hearing may be held at which the aggrieved employee(s)
shall present their grievance(s) to the Board and the Personnel Director.”
The evidence also included affidavits that East submitted from Wilson,
Banks, Keith Waller, and Leroy Travis, all of whom formerly worked for the
county fire department. Wilson stated that he was 55 years old and demoted for a
“common mistake” that had not been used as a reason for demotion before. He
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asserted that “[i]t was common knowledge that Chief Cohilas wanted the
‘youngest and best’ department, as he himself termed it.” Wilson noted that
Condrey and Battalion Chief Lowe questioned him about the rumors about
Cohilas, and pressured him to say that East was the source of the rumors. He felt
that they wanted East out of the department. According to Banks, Cohilas used a
strenuous sporting competition known as the Combat Challenge, “as a means of
pushing older firefighters out of the workforce through retirement or otherwise.”
In his affidavit, Waller asserted that he retired two years prior to receiving full
benefits because he “could no longer tolerate the treatment of older workers.”
Waller stated that East was not the source of the rumor because Waller was the
one who told East, and East “was startled and found it funny” when Waller told
him. Likewise, Travis asserted that he retired early in October 2009, because he
“had become fed up with what was happening in the department” regarding
Cohilas “targeting older workers.”
After discovery, the defendants filed a motion for summary judgment,
arguing for the dismissal of all claims, and relevant to the present appeal, they
argued as follows. The county was entitled to summary judgment on East’s age
discrimination claim because East had presented no evidence that similarly
situated employees under 40 were treated more favorably, as he had no evidence
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of any younger lieutenants who were accused of engaging in “nearly identical”
conduct. Even if East could establish a prima facie case, the defendants submitted
that he could not establish a pretext for age discrimination or establish that age
was the but-for cause of the adverse action because the county fire department had
a legitimate reason for the adverse employment action. The defendants also
argued that East’s 42 U.S.C. § 1983 procedural due process claim should fail
because he had an adequate state remedy, namely mandamus. They contended that
the impact of his unpaid administrative leave was minimal since it was for a short
period of time and was limited to investigating the allegations, and thus, a formal
pre-deprivation procedure was not required.
In opposing the defendants’ motion for summary judgment, East made the
following arguments relevant to the appeal. As to his age discrimination claim,
the affidavits of four individuals who worked with Cohilas, which alleged that he
was biased against older firefighters, constituted direct evidence of discrimination.
Further, East had established a prima facie case of discrimination because he
showed that all the individuals, except Wilson, who were investigated concerning
the rumors were younger than him and were not taken off duty without pay. The
work rule, § 3.11.2 of the employee manual, cited by Cohilas for removing East
from duty, applied to all employees regardless of rank. He did not violate this
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work rule and his conduct was similar to persons outside the protected class, yet
he was disciplined more severely. The defendants’ proffered nondiscriminatory
reasons for the adverse employment action were pretext for age discrimination.
The defendants’ violated his procedural due process by not giving him a grievance
hearing or appeal for over two years. As to his § 1983 procedural due process
claim, under Georgia law, mandamus is not available to an employee alleging a
due process violation who had an adequate legal remedy, including administrative
appeals and hearings.
The district court found in relevant part that East had not presented direct
evidence of age discrimination because his proffered evidence only related to the
defendants’ attitude generally and not to this specific adverse action. The court
determined that East did not establish a prima facie case of discrimination based
on circumstantial evidence because he had not established that a similarly situated
employee outside of his class was treated more favorably. Specifically, the court
noted that employees in paramilitary organizations, such as fire departments, “are
generally not similarly situated if they are not the same rank.” It also indicated
that East had not affirmatively identified any individual comparator outside his
class, but rather he summarily stated that “numerous employees were questioned
regarding these rumors,” and he was the only one punished. As for the other two
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firefighters involved in the initial rumor accident, Hakeem and Lee, the court
found that neither of them was of East’s rank and that East’s position as lieutenant
was “unique,” as he held the “ultimate supervisory position at that station.”
Moreover, the court noted that East was the only person who was “reported” to
command as having spread the rumor.
The court also found that East had a sufficient state law remedy which
precluded his 42 U.S.C. § 1983 claim predicated on procedural due process. It
noted that, while East claimed that he had filed an unanswered hearing request and
the personnel director claimed that it was unclear whether East had a right to such
a hearing, East still had mandamus as a sufficient state law remedy above and
beyond the civil service remedies. Therefore, the court granted the defendant’s
motion to dismiss East’s procedural due process § 1983 claims. It also dismissed
East’s other claims not relevant to this appeal.
II.
We review de novo a district court’s grant of summary judgment. Damon v.
Fleming Supermarkets of Fla., Inc., 196 F.3d 1354, 1357 (11th Cir. 1999).
Summary judgment is appropriate where there is no genuine issue of material fact
and the moving party is entitled to judgment as a matter of law. Id. at 1358. In
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making this determination, the court must draw all reasonable inferences in favor
of the nonmoving party. Id.III.
A plaintiff can establish age discrimination either through direct or
circumstantial evidence. Mora v. Jackson Mem’l Found, Inc., 597 F.3d 1201,
1204 (11th Cir. 2010). Each approach is discussed separately below as it relates to
East’s disparate treatment claim.
A. Direct Evidence
“Direct evidence is evidence that establishes the existence of discriminatory
intent behind the employment decision without any inference or presumption.”
Standard v. A.B.E.L. Servs., 161 F.3d 1318, 1330 (11th Cir. 1998). It consists of
“[o]nly the most blatant remarks, whose intent could be nothing other than to
discriminate on the basis of age.” Van Voorhis v. Hillsborough Cnty. Bd. of Cnty.
Comm’rs, 512 F.3d 1296, 1300 (11th Cir. 2008) (quotation omitted). Evidence
that merely suggests a discriminatory motive is, by definition, circumstantial
evidence. Burrell v. Bd. of Tr. of Ga. Military Coll., 125 F.3d 1390, 1393-94
(11th Cir. 1997). “[R]emarks by non-decisionmakers or remarks unrelated to the
decisionmaking process itself are not direct evidence of discrimination.”
Standard, 161 F.3d at 1330.
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East relies on Wright v. Southland Corp., 187 F.3d 1287, 1293-1303 (11th
Cir. 1999), for the “preponderance” definition of direct evidence, to argue that the
court erred in applying the incorrect standard. According to Wright, “‘direct
evidence,’ in the context of employment discrimination law, means evidence from
which a reasonable trier of fact could find, more probably than not, a causal link
between an adverse employment action and a protected personal characteristic.”
187 F.3d at 1293. No published opinion has overruled this definition, nor has a
published opinion directly applied this standard since the Wright decision was
issued in 1999. In any event, even if the preponderance language in Wright
controls this case, East still has not submitted evidence that, more probably than
not, establishes a causal link between the adverse employment action and his age.
East relies solely on the affidavits from other older, retired firefighters to
support to his contention that he has established direct evidence of Cohilas’s
discriminatory intent to place him on unpaid administrative leave. With the
exception of Wilson’s affidavit, the statements from the other former firefighters
were unrelated to the instant adverse employment action, and thus, do not establish
a probable causal link between East’s leave and his age and do not constitute
direct evidence. See Wright 187 F.3d at 1293; Standard, 161 F.3d at 1330. Even
though Wilson stated that he was pressured to say that East started the rumors
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because Cohilas wanted to fire East, his remarks are not considered direct
evidence of age discrimination. While the remarks may indicate that Cohilas
wanted to fire East, they do not indicate that Cohilas was motivated by an intent to
discriminate against East based on age. See Standard, 161 F.3d at 1330.
Moreover, East has not presented any evidence that Cohilas made any
remark about his age in connection with the decision to place him on unpaid leave.
In fact, East testified that his age was never mentioned in any of the meetings
concerning the investigation, and he was not aware of Cohilas saying anything to
him or anyone else about his age. Because he has not submitted any evidence of
Cohilas making an ageist remark in connection with the decisionmaking process
itself, East has not established direct evidence of Cohilas’s discriminatory intent.
See Standard, 161 F.3d at 1330.
B. Circumstantial Evidence
The Supreme Court in Gross v. FBL Fin. Servs., Inc. held that to establish a
disparate-treatment claim under the ADEA, a “plaintiff must prove by a
preponderance of the evidence . . . that age was the ‘but-for’ cause of the
challenged employer decision.” 557 U.S. __ , 129 S.Ct. 2343, 2351, 174 L.Ed.2d
119 (2009); see also Mora, 597 F.3d at 1204 (noting, in our only published
opinion interpreting Gross, that “an ADEA plaintiff must establish ‘but for’
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causality . . . the employer either acted ‘because of’ the plaintiff’s age or it did
not”). Even so, the Supreme Court expressly reserved the question of “whether
the evidentiary framework of [McDonnell Douglas Corp. v. Green, 411 U.S. 792,
802-04, 93 S.Ct. 1817, 1824-25, 36 L.Ed.2d 668 (1973)] . . . is appropriate in the
ADEA context.” Gross, 557 U.S. at __, 129 S.Ct. at 2349 n.2.
We have used the analytical framework from McDonnell Douglas in ADEA
cases where a plaintiff offers circumstantial evidence to prove a claim of
discrimination. Cofield v. Goldkist, Inc., 267 F.3d 1264, 1268 n.6 (11th Cir. 2001)
(noting that “[a]lthough the McDonnell Douglas framework originally applied to
Title VII cases, it is now widely accepted that the framework applies to claims of
discrimination under the ADEA as well”). Since the Supreme Court did not
explicitly overrule our precedent in applying the McDonnell Douglas test to
ADEA cases involving circumstantial evidence, we review East’s claims under
both McDonnell Douglas and Gross. See Gandara v. Bennett, 528 F.3d 823, 829
(11th Cir. 2008) (“we are bound by the holdings of earlier panels unless and until
they are clearly overruled en banc or by the Supreme Court”).
Applying the McDonnell Douglas framework, the plaintiff can establish a
prima facie case of age discrimination by showing he was: (1) a member of the
protected class; (2) qualified for his current position; (3) subject to adverse
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employment action; and (4) treated less favorable than any younger, similarly
situated employee. Zaben v. Air Prods. & Chems., Inc., 129 F.3d 1453, 1457
(11th Cir. 1997) (holding that replacement by someone outside the protected
group is required to make a prima facie age discrimination case); see also
O’Connor v. Consol. Coin Caterers Corp., 517 U.S. 308, 313, 116 S.Ct. 1307,
1310, 134 L.Ed.2d 433 (1996) (holding that being replaced by someone outside
the protected class is not a proper element of the fourth prong because replacement
by a substantially younger employee is a far more reliable indicator of age
discrimination); Knight v. Baptist Hosp. of Miami, Inc., 330 F.3d 1313, 1316
(2003) (holding that more favorable treatment of similarly situated employees
outside the race classification is required to make a prima facie race
discrimination case).
Once a plaintiff establishes a prima facie case of age discrimination, the
employer must offer legitimate, nondiscriminatory reasons for the employment
action. Mitchell v. USBI Co., 186 F.3d 1352, 1354 (11th Cir. 1999). “If the
employer does so, the plaintiff bears the ultimate burden of demonstrating that the
employer’s proffered reasons are a pretext for discrimination.” Id. “If the
proffered reason is one that might motivate a reasonable employer, a plaintiff
cannot recast the reason but must meet it head on and rebut it.” Springer v.
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Convergys Customer Mgmt. Grp., Inc., 509 F.3d 1344, 1350 (11th Cir. 2007)
(quotation omitted). “[A] plaintiff must produce sufficient evidence for a
reasonable factfinder to conclude that each of the employer’s proffered
nondiscriminatory reasons is pretextual.” Chapman v. AI Transport, 229 F.3d
1012, 1037 (11th Cir. 2000) (en banc).
Importantly, “the ultimate burden of persuading the trier of fact that the
employer intentionally discriminated against the employee remains at all times
with the plaintiff.” Brooks v. Cnty. Comm’n of Jefferson Cnty., Ala., 446 F.3d
1160, 1162 (11th Cir. 2006) (quotation omitted). Further, if the employer acted on
its honestly-held belief that the employee had engaged in misconduct, even if it
was mistaken, there is no discrimination. Elrod v. Sears, Roebuck and Co., 939
F.2d 1466, 1470 (11th Cir. 1991).
Applying the McDonnell Douglas test, the district court correctly concluded
that East did not establish a prima facie case for his termination claim because he
did not show that he was treated less favorably than any younger, similarly
situated employee. See Zaben, 129 F.3d at 1457; Knight, 330 F.3d at 1316. There
is no evidence that any younger employee was suspected of being the source of the
rumors. As East testified, he and Wilson were the only ones investigated as being
the source of the rumors, and Wilson was older than East and did not face any
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adverse employment action for this incident, although he was later demoted for a
separate incident. It is also noteworthy that Hakeem, who East contends lied to
the command staff, was around 40 years old, and thus, was close to East’s age
when the alleged events occurred. Thus, East has not presented any evidence that
anyone younger than him had been suspected of starting the rumor or believed to
have committed any similar violation and who did not receive unpaid
administrative leave.
Even assuming arguendo that East could establish a prima face case for his
adverse employment action, the defendants presented legitimate, non-
discriminatory reasons for placing him on unpaid administrative leave. Cohilas
stated that he thought East was the source of the rumors and wanted to investigate
the matter further. East did not provide any rebuttal to this assertion, and in fact,
acknowledged that he thought Cohilas and the others did not believe him when he
said he did not start the rumors. As such, he did not meet the employer’s reason
head on and rebut it. See Chapman, 229 F.3d at 1030. Construing the facts in the
light most favorable to East, Cohilas, even if mistaken, acted on his honestly held
belief that East had engaged in misconduct warranting unpaid administrative
leave. See Elrod, 939 F.2d at 1470. Thus, East failed to meet his burden to show
that the defendants’ proffered reasons for terminating him were pretextual. See
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Brooks, 446 F.3d at 1162. For the same reasons, he has also failed to present
evidence establishing that age discrimination was the “but-for” cause of his
adverse employment action to meet the Gross test.
IV.
We conduct a de novo review of constitutional law issues. Eagle Hosp.
Physicians, LLC v. SRG Consulting, Inc., 561 F.3d 1298, 1303 (11th Cir. 2009).
The Due Process Clause of the Fourteenth Amendment states that “nor shall any
State deprive any person of life, liberty, or property, without due process of law.”
U.S. Const. amend XIV, § 1. This clause has been interpreted to provide two
kinds of due process protection: procedural due process and substantive due
process. McKinney v. Pate, 20 F.3d 1550, 1555 (11th Cir. 1994) (en banc).
To state a claim under 42 U.S.C. § 1983 for denial of procedural due
process, an individual must show “the state refuse[d] to provide a process
sufficient to remedy the procedural deprivation.” Cotton v. Jackson, 216 F.3d
1328, 1330-31 (11th Cir. 2000) (quotation omitted). “This rule . . . recognizes that
the state must have the opportunity to remedy the procedural failings of its
subdivisions and agencies in the appropriate fora-agencies, review boards, and
state courts before being subjected to a claim alleging a procedural due process
violation.” Id. at 1331 (quotation omitted).
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Because East did not have a hearing, he is correct that he does not have a
right to a writ of certiorari. See O.G.G.A. § 5-4-1(a) (stating that the “writ of
certiorari shall lie for the correction of errors committed by any inferior
judicatory”). However, pursuant to Georgia law, when no other specific legal
remedy is available and a party has a clear right to have a certain act performed, a
party may seek mandamus.” Cotton, 216 F.3d at 1332; O.C.G.A. § 9-6-20. Under
Georgia law, this procedure can be used to compel a governmental body to act in
compliance with the law, for instance to require a governmental board to hold a
hearing as provided by law. Acree v. Walls, 243 S.E.2d 489, 493 (Ga. 1978).
While there is an issue of fact as to whether East was entitled to a civil
service board hearing, there is no genuine issue of material fact as to his
procedural due process claims for the following reasons. First, even assuming,
arguendo, that East had a clear right to a hearing and the defendants deprived East
of procedural due process by failing to provide him with such a hearing, East had a
state remedy available to address that deprivation. East could have petitioned
Georgia courts for a writ of mandamus, and as such, his procedural due process
claim is not actionable. See Cotton, 216 F.3d at 1332; O.C.G.A. § 9-6-20.
Second, if East did not have a legal right to these procedures, as he suggests in his
effort to bypass the mandamus requirement, he had no due process rights to those
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procedures in the first place. It is noteworthy, that it appears that East likely
received sufficient due process because he was only placed on unpaid
administrative leave from February 14 to 25, 2008, he was informed of his alleged
violation, and he had several opportunities, albeit informal ones, to rebut the
allegations. Accordingly, the district court did not err in finding that East’s
procedural due process rights were not violated under 42 U.S.C. § 1983.
For the foregoing reasons, we affirm the judgment of the district court.
AFFIRMED.
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