Irene Lawver, M.D. v. Hillcrest Hospice, Inc.

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 08-11626 ELEVENTH CIRCUIT
November 24, 2008
Non-Argument Calendar
THOMAS K. KAHN
________________________
CLERK
D. C. Docket No. 05-02027-CV-CC-1
IRENE LAWVER, M.D.,
Plaintiff-Appellant,
versus
HILLCREST HOSPICE, INC.,
d.b.a. Portsbridge Hospice,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(November 24, 2008)
Before ANDERSON, WILSON and PRYOR, Circuit Judges.
PER CURIAM:
Irene Lawver appeals the district court’s grant of summary judgment in
favor of defendant Hillcrest Hospice, Inc. (“Hillcrest”). Lawver is a female over
forty years of age. She brought claims for gender discrimination pursuant to Title
VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq, and the Equal Pay
Act (“EPA”), 29 U.S.C. § 206(d)(1), and claims for age discrimination pursuant to
the Age Discrimination and Employment Act (“ADEA”), 29 U.S.C. § 621 et seq.
Lawver also appeals the district court’s award of attorney’s fees to Hillcrest on her
Title VII, EPA, and ADEA claims.
On appeal, Lawver argues that the magistrate judge abused his discretion by
striking a witness’s affidavit on the grounds that she failed to disclose the witness
during discovery. Additionally, Lawver argues that the district court erred by
(1) disregarding her affidavit, which she claims was not inconsistent with her
deposition; (2) finding that she failed to establish prima facie cases on her Title VII
and EPA claims, as she claims Hillcrest terminated her position instead of a higher
paid male coworker’s position; and, (3) awarding Hillcrest attorney’s fees, as she
argues that her claims were not frivolous, nor litigated in bad faith.
I. Striking of witness’s affidavit
We review the exclusion of evidence, based on Federal Rule of Civil
Procedure 26 violations, for an abuse of discretion. Cooper v. S. Co., 390 F.3d
695, 728 (11th Cir. 2004). “We review a district court’s exclusion of a witness not
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listed on the pretrial order for abuse of discretion, and consider: (1) the importance
of the testimony; (2) the reason for the appellant’s failure to disclose the witness
earlier; and (3) the prejudice to the opposing party if the witness had been allowed
to testify. Bearint ex rel. Bearint v. Dorrell Juvenile, 389 F.3d 1339, 1353 (11th
Cir. 2004).
Each party is required to disclose the names of individuals who likely have
discoverable information that the party may use to support its claims or defenses.
F ED. R. C IV. P. 26(a)(1)(A). The parties are required to supplement incomplete
Rule 26(a) disclosures. F ED. R. C IV. P. 26(e)(1). A party who fails to comply with
Rule 26(a) or (e) is precluded from using the undisclosed witness “to supply
evidence on a motion . . . unless the failure was substantially justified or is
harmless.” F ED. R. C IV. P. 37(c)(1). We have held that, when a party fails to
comply with Rule 26, the district court does not abuse its discretion by striking an
affidavit submitted in opposition to summary judgment, pursuant to Rule 37(c).
See Cooper, 390 F.3d at 727-28.
Lawver did not disclose her witness either in her initial disclosure or in
response to Hillcrest’s interrogatory asking Lawver to provide the names of all
witnesses whom she contended possessed information in support of her claims. At
no time did Lawver supplement her disclosures to reveal her intended witness to
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Hillcrest. It is irrelevant that her witness was once an employee of Hillcrest.
Lawver has not provided any adequate explanation for her failure to disclose her
witness earlier. Therefore, because Lawver failed to amend her discovery
disclosures to identify her witness, the magistrate judge did not abuse his discretion
by striking her witness’s affidavit.
II. Summary judgment
“We review de novo a district court’s order granting [a] motion for summary
judgment and construe all reasonable doubts about the facts in favor of the
nonmovant.” Gilmour v. Gates, McDonald and Co., 382 F.3d 1312, 1314 (11th
Cir. 2004) (per curiam) (internal quotation marks omitted). We will not consider
arguments that are mentioned in passing without elaboration or citation of
authority. See Flanigan’s Enters., Inc. of Ga. v. Fulton County, Ga., 242 F.3d 976,
987 n.16 (11th Cir. 2001); see also F ED. R. A PP. P. 28(a)(9)(A) (requiring that an
appellant’s brief contain her contentions, along with citations).
Summary judgment is appropriate “if the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any, show
that there is no genuine issue as to any material fact and that the moving party is
entitled to a judgment as a matter of law.” Celotex Corp. v. Catrett, 477 U.S. 317,
322, 106 S. Ct. 2548, 2552, 91 L. Ed. 2d 265 (1986) (quoting F ED. R. C IV. P.
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56(c)). “An issue is genuine if the evidence is such that a reasonable jury could
return a verdict for the nonmoving party.” Allen v. Bd. of Pub. Educ., 495 F.3d
1306, 1313 (11th Cir. 2007). To establish a genuine issue, a party must present
more than conclusory and unsupported factual allegations. Ellis v. England, 432
F.3d 1321, 1326 (11th Cir. 2005) (per curiam).
a. Lawver’s affidavit
Title VII prohibits sex-based discrimination that alters the terms and
conditions of employment. 42 U.S.C. § 2000e-2(a)(1). A plaintiff can prove
gender discrimination through either direct or circumstantial evidence. E.E.O.C. v.
Joe’s Stone Crabs, Inc., 296 F.3d 1265, 1272 (11th Cir. 2002). “Direct evidence of
discrimination is evidence, that, if believed, proves the existence of a fact in issue
without inference or presumption . . . [and] is composed of only the most blatant
remarks, whose intent could be nothing other than to discriminate on the basis of
some impermissible factor.” Rojas v. Fla., 285 F.3d 1339, 1342 n.2 (11th Cir.
2002) (per curiam) (internal quotation marks and citation omitted).
A party’s affidavit may be disregarded as a sham when it contradicts,
without explanation, her prior deposition testimony that established that there was
not a genuine issue of material fact. Van T. Junkins and Assoc., Inc. v. U.S. Indus.,
Inc., 736 F.2d 656, 657 (11th Cir. 1984). We have held that the Van T. Jenkins
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rule should be used sparingly:
[as] to allow every failure of memory or variation in a witness’
testimony to be disregarded as a sham would require far too much
from lay witnesses and would deprive the trier of fact of the
traditional opportunity to determine which point in time and with
which words the affiant was stating the truth.
Allen v. Bd. of Pub. Educ., 495 F.3d at 1316 (quoting Tippens v. Celotex Corp.,
805 F.2d 949, 953-54 (11th Cir. 1986) (alterations omitted). A district court must
find that the party’s affidavit and deposition contain an inherent inconsistency
before it can disregard an affidavit. Id.
We are not convinced by Lawver’s argument that her deposition testimony
accords with her subsequent affidavit. In her deposition, she states that she made a
comment, and Hillcrest’s chief operating officer laughed. However, in her
affidavit, she states that she asked a question of the chief operating officer, who
laughed and nodded his head in affirmance. Lawver now asserts that the chief
operating officer’s head nod provides the direct evidence of his discrimination.
Given the central importance of this alleged head nod to Lawver’s case, we agree
with the magistrate and district court that Lawver’s affidavit is inherently
inconsistent with her prior testimony. The district court did not err by disregarding
Lawver’s affidavit as a sham.
b. EPA claim
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We review for clear error a district court’s finding that an employer
established that sex did not provide any basis for a pay disparity. Steger v. Gen.
Elec. Co., 318 F.3d 1066, 1078 (11th Cir. 2003). A plaintiff establishes an EPA
prima facie case “by showing that the employer paid employees of opposite
genders different wages for equal work for jobs which require equal skill, effort,
and responsibility, and which are performed under similar working conditions.”
Id. at 1077-78 (internal quotation marks and citation omitted). If the plaintiff
establishes a prima facie case, the employer must establish, by a preponderance of
the evidence, that the difference in pay was due to “(i) a seniority system; (ii) a
merit system; (iii) a system which measures earnings by quantity or quality of
production; or (iv) any other factor other than sex.” Id. at 1078 (quoting 28 U.S.C.
§ 206(d)(1) (alteration omitted). If the employer meets its burden, the plaintiff
must rebut the defense by establishing, through affirmative evidence, that the
employer’s justification was pretext or a post-hoc justification. Id. If the employer
fails to establish that the pay differential was for a reason other than sex, the
plaintiff is entitled to judgment, as the EPA does not require her to prove that the
employer acted with discriminatory intent. Meeks v. Computer Assoc. Int’l, 15
F.3d 1013, 1019 (11th Cir. 1994).
When neither Lawver’s affidavit nor her witness’s affidavit are considered,
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as they are not here, pursuant to F ED. R. C IV. P. 37(c)(1), Lawver has not made out
a prima facie case of gender discrimination. Futhermore, Hillcrest has
demonstrated that any pay differential between Lawver and her male coworker was
based on the male coworker’s seniority and credentials. Thus, the district court
did not err in granting summary judgment in favor of Hillcrest on Lawver’s EPA
claim.
c. Title VII wage discrimination
In addition to an EPA claim for wage discrimination, an employee can bring
a wage discrimination suit under Title VII. Miranda v. B & B Cash Grocery Store,
Inc., 975 F.2d 1518, 1527-28 (11th Cir. 1992). However, we do not consider
issues raised for the first time on appeal. Access Now, Inc. v. Southwest Airlines,
Co., 385 F.3d 1324, 1331 (11th Cir. 2004).
We do not address Lawver’s Title VII wage discrimination claim, as she
raises it for the first time on appeal.
d. Title VII gender discrimination
We use the analytical framework established by McDonnell Douglas Corp.
v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973), when a plaintiff
offers circumstantial evidence to establish a Title VII violation. Standard v.
A.B.E.L. Servs., Inc., 161 F.3d 1318, 1331 (11th Cir. 1998). This framework
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requires the plaintiff to establish a prima facie case of discrimination, and then the
burden shifts to the employer to offer a legitimate, non-discriminatory reason for
the employment action it took. Id. The burden then shifts back to the plaintiff to
demonstrate that the proffered reason was pretextual. Id. The plaintiff can
establish pretext by showing that the employer’s non-discriminatory reason should
not be believed, or, when considering all the evidence, that it is more likely that the
discriminatory reasons motivated the decision than the employer’s proffered
reasons. Id. at 1332.
Ordinarily, to establish a prima facie case of discrimination under Title VII,
the plaintiff must establish that “(1) she is a member of a protected class; (2) she
was subjected to adverse employment action; (3) her employer treated similarly
situated employees who are not members of the plaintiff’s class more favorably;
and (4) she was qualified for the job. . . .” Rice-Lamar v. City of Ft. Lauderdale,
Fla., 232 F.3d 836, 842-43 (11th Cir. 2000). In reduction-in-force cases, however,
a plaintiff establishes a prima facie case of discrimination by “(1) showing that
[she] was a member of a protected group and was adversely affect by an
employment decision; (2) proving that [she] was qualified for [her] position or to
assume another position at the time of the discharge; and (3) producing sufficient
evidence from which a rational fact finder could conclude that his employer
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intended to discriminate against him in making the discharge decision.” Standard,
161 F.3d at 1331. We have held that, in reduction-of-force cases, the employer
“seldom” seeks to replace the discharged employee. Mauter v. Hardy Corp., 825
F.2d 1554, 1557 (11th Cir. 1987).
The district court properly evaluated Lawver’s Title VII gender
discrimination claim as a reduction-in-force case. Lawver’s position as a Medical
Director was eliminated. Although Hillcrest did hire two new Associate Medical
Directors to cover the patients previously seen by Lawver, the Associate Medical
Directors had far fewer responsibilities and, even together, were paid much less
than a single Medical Director. As such, Lawver cannot be said to have been
replaced.
Again, when one does not consider either Lawver’s affidavit or her witness’s
affidavit, Lawver has not made out a prima facie case of gender discrimination.
Moreover, Hillcrest has presented sufficient evidence to establish that it eliminated
a Medical Director position because the company was experiencing financial
difficulty. Additionally, Hillcrest has demonstrated that it retained Lawver’s male
coworker on the basis of his seniority and better credentials.
Lawver failed to establish a prima facie case through circumstantial
evidence because she did not show that Hillcrest eliminated her position based on
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discriminatory intent. The district court did not err in granting summary judgment
in favor of Hillcrest on Lawver’s Title VII gender discrimination claim.
III. Attorney’s fees
We review the granting of attorney’s fees for an abuse of discretion.
Quintana v. Jenne, 414 F.3d 1306, 1309 (11th Cir. 2005).
A district court may grant attorney’s fees to a prevailing defendant in ADEA
cases upon a finding that the plaintiff litigated her claim in bad faith. Turlington v.
Atlanta Gas Light Co., 135 F.3d 1428, 1437 (11th Cir. 1998). A district court may
grant a prevailing defendant attorney’s fees in Title VII cases upon a finding that
the plaintiff’s claims were “frivolous, unreasonable, or without foundation.” Id. at
1437 n.19 (quoting Christiansburg Garment Co. v. E.E.O.C., 434 U.S. 412, 421,
98 S. Ct. 694, 700, 54 L. Ed. 2d 648 (1978). In reviewing frivolity
determinations, we view the evidence in the light most favorable to the plaintiff.
Cordoba v. Dillard’s, Inc., 419 F.3d 1169, 1179 (11th Cir. 2005). We have held
that three factors are important in determining whether a claim was frivolous: “(1)
whether the plaintiff established a prima facie case; (2) whether the defendant
offered to settle; and (3) whether the trial court dismissed the case prior to trial or
held a full-blown trial on the merits.” Sullivan v. Sch. Bd. of Pinellas County, 773
F.2d 1182, 1189 (11th Cir. 1985). These factors, however, are only general
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guidelines, and frivolity determinations must be made on a case-by-case basis.
Quintana, 141 F.3d at 1309.
A settlement offer does not automatically bar a defendant from receiving
attorney’s fees, and the amount of the offer must be considered in determining
whether the offer militates against a finding of frivolity. Id. at 1310. Attorney’s
fees are inappropriate when the plaintiff’s claims are meritorious enough to receive
careful attention and review. Walker v. NationsBank of Fla. N.A., 53 F.3d 1548,
1559 (11th Cir. 1995). A plaintiff does not proceed frivolously when her case is
based solely on speculation, as long as the speculation is reasonable. Cordoba,
419 F.3d at 1181 (addressing attorney’s fees in an ADA case).
We agree with the magistrate and district court on the merits of Lawver’s
claims. However, although Lawver’s claims were weak, they were not “frivolous,
unreasonable, or without foundation.” Turlington, 135 F.3d at 1437. Lawver
reasonably speculated that she was terminated on the basis of her gender and age.
Her male coworker was not terminated. The Associate Medical Directors
hired to cover her patients were younger than her. Her witness’s affidavit stated
that Hillcrest was profitable during the relevant times, such that Hillcrest need not
have reduced its workforce. Two other Hillcrest employees stated that they
observed gender discrimination at Hillcrest. Although this evidence was not all
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ultimately admissible and did not amount to a prima facie case, Lawver’s
speculation that she was terminated on the basis of discrimination was reasonable.
“Because [Lawver’s] claims, though weak, were not entirely ‘without foundation,’
this district court’s award of fees and expenses constituted an abuse of discretion.”
Cordoba, 419 F.3d at 1182. Accordingly, we reverse the district court’s grant of
attorney’s fees to Hillcrest.
CONCLUSION
Upon review of the record and the parties’ briefs, we find no reversible error
in the district court’s grant of summary judgment to Hillcrest. Accordingly, we
affirm the district court.
However, we find that the district court’s grant of attorney’s fees to Hillcrest
constituted an abuse of discretion. Accordingly, we reverse the district court.
AFFIRMED in part; REVERSED in part.
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