Lonnie B. Lee v. State of Florida , 135 F. App'x 202 ( 2005 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
_____________________________
FILED
No. 03-16180 U.S. COURT OF APPEALS
_____________________________ ELEVENTH CIRCUIT
APRIL 27, 2005
D. C. Docket Nos. 01-00435 CV-1-SPM & 01-00442-CV-1-S KAHN
THOMAS K.
CLERK
LONNIE B. LEE, et al.,
Plaintiffs-Appellants,
versus
STATE OF FLORIDA,
DEPARTMENT OF CHILDREN
& FAMILY SERVICES,
Defendants-Appellees.
_________________________________________
Appeal from the United States District Court
for the Northern District of Florida
_________________________________________
(April 27, 2005)
Before EDMONDSON, Chief Judge, MARCUS and PRYOR, Circuit Judges.
PER CURIAM:
This case involves the State of Florida’s extension of special retirement
benefits to certain occupational classifications. African-American employees in
the forensic units at Florida State Hospitals who held positions that were not
granted the benefits filed a class action complaint alleging disparate impact
discrimination. The Plaintiff-Appellants argued that the Legislature’s inclusion of
certain predominately white employment classes in the special risk membership
violated Title VII. The district court granted the State of Florida Department of
Children and Family Services’s motion for summary judgment. We affirm.
BACKGROUND
Under the Florida Retirement System (“FRS”), certain occupations are
given special retirement benefits which provide, among other things, higher
retirement accrual rates and a lower retirement age. Fla. Stat. § 121.0515. In
2000, the Legislature expanded the sectors of employment eligible for special
benefits, creating a class of “special risk membership” (“SRM”) in the FRS statute,
in recognition that “certain categories of [employees] . . . are required as one of the
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essential functions of their positions to perform work that is physically demanding
. . ., or work that requires extraordinary agility and mental acuity.” Fla. Stat. §
121.0515(1). Persons who 1) are employed in one of twenty-four classes listed in
the statute1 and 2) spend at least 75% of their time performing duties involving
contact with patients or inmates, were afforded expanded coverage by the
legislation. Fla. Stat. § 121.0515(2)(f).
A group of African-American employees (“Employees”) in the forensic
units at the Chattahoochee, Gainesville and Miami branches of the Florida State
Hospital who spend at least 75% of their time performing duties involving contact
with patients, but are not employed in any of the additional classifications, filed a
class action complaint against the State of Florida and the Department of Children
and Family Services (“Department”) alleging disparate impact discrimination.
They alleged that, at the time the statute went into effect, the forensic unit
employed 1321 people, 172 of whom were made eligible for the special risk
membership. The Employees noted that the award of SRM had a disparate impact
1
The following list represents the classes afforded special risk membership in the statute:
dietitian, public health nutrition consultant, psychological specialist, psychologist, senior
psychologist, regional mental health consultant, psychological services director, pharmacist, senior
pharmacist, dentist, senior dentist, registered nurse, senior registered nurse, registered nurse
specialist, clinical associate, advanced registered nurse practitioner, advanced registered nurse
practitioner specialist, registered nurse supervisor, senior registered nurse supervisor, registered
nursing consultant, quality management program supervisor, executive nursing director, speech and
hearing therapist, and pharmacy manager. Fla. Stat. § 121.0515(2)(f).
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based on race: of the 172 eligible employees, 115 (67%) were white, whereas 783
(68.1%) of the 1149 non-eligible employees were black. The Employees alleged
that they are exposed to the same risks and physical demands as persons serving in
one of the statutorily delineated professions qualifying for SRM. The Employees
argued that the State violates Title VII by including certain predominately white
employment classes in the special risk membership, while excluding
predominately black classes that are allegedly exposed to the same levels of risk.
The State argued that the positions in which plaintiffs were employed were
not comparable to the 24 delineated positions. The State explained that the
positions awarded SRM are composed of professional employees; they receive
higher compensation,2 which reflects “differences in education, training, licensure
or certification.” The State contended that the increase in benefits reflects these
differences.
2
One expert found that “the average bi-weekly salary of the employees in the class codes that
were moved to Special Risk in January 2001 [was] almost double the bi-weekly salary of the
employees in the class codes that were not placed in Special Risk.”
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DISCUSSION
Disparate impact theory “prohibits neutral employment practices which,
while non-discriminatory on their face, visit an adverse, disproportionate impact
on a statutorily-protected group.” EEOC v. Joe’s Stone Crab, 220 F.3d 1263, 1274
(11th Cir. 2000). To establish a prima facie case of disparate impact
discrimination, a plaintiff must demonstrate 1) a specific, facially-neutral
employment practice, 2) a significant statistical disparity in the racial composition
of employees benefitting from the practice and those qualified to benefit from the
practice; and 3) a causal nexus between the practice identified and the statistical
disparity. Id.Appellants have failed to establish a prima facie case of disparate impact
discrimination. We will assume, without deciding, that Appellants have identified
a “specific, facially-neutral employment practice.”3 Id. at 1268. But, because
3
We doubt that the Legislature’s enactment of a statute awarding SRM to 24 employment classes,
or even the Department of Children and Family Services’ implementation of the statute, can
constitute an “employment practice” for Title VII purposes. See American Federation of State,
County, and Municipal Employees, AFL-CIO v. State of Washington, 770 F.2d 1401, 1406 (9th Cir.
1985) (declining to analyze, under disparate impact theory, claim that State of Washington’s practice
of taking prevailing market rates into account in setting lower wages for job classifications
predominately composed of women violated Title VII because “the decision to base compensation
on the competitive market . . . involves the assessment of a number of complex factors not easily
ascertainable, an assessment too multifaceted to be appropriate for disparate impact analysis.”) But,
for purposes of analysis, we assume that this threshold requirement was met.
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Appellants have failed to demonstrate a statistical disparity in the racial
composition of employees benefitting from the practice and those qualified to
benefit from the practice, we conclude that no prima facie case has been
demonstrated.
The Supreme Court has cautioned that in analyzing evidence presented in
claims of disparate impact discrimination, “statistics based on an applicant pool
containing individuals lacking minimal qualifications for the job would be of little
probative value.” Watson v. Fort Worth Bank and Trust, 108 S.Ct. 2777, 2790
(1988). Here, SRM is only granted to 1) individuals employed in one of the
specified occupations if 2) the persons spend 75% of their time interacting with
forensic clients. Therefore, to establish the statistical disparity element, the
Employees would have had to prove that despite meeting both of these
requirements, a disproportionate percentage of blacks were denied SRM.
Although the Employees asserted that they spend 75% of their time
interacting with forensic clients, they presented no evidence that they held, were
qualified for, or even desired one of the 24 delineated positions. Mere assertion
that they encountered identical levels of patient conduct is insufficient. Under the
statute, SRM does not attach to the conditions of the working environment alone,
but also requires the achievement of a level of employment classified by the
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statute. Notably, the employees have not alleged that they were prohibited -- in
any way -- from serving in one of the 24 delineated positions.4 They assert an
entitlement to the benefits of these positions on the basis that their jobs require
comparable levels of time and exposure to risk. By doing so, the employees
ignore that other factors -- beyond exposure to risk -- distinguish the positions:
they require different level of education, a different kind of work and represent
different jobs.5 Without asserting a legally cognizable statistical disparity, the
Employees have failed to establish a prima facie case.
Notably, were we to assume, for purposes of argument, that Employees
established a prima facie case, the State has demonstrated that the discrepancy in
retirement benefits is “job related to the position in question and consistent with
business necessity.” 42 U.S.C. § 2000e-2(k)(1)(A)(i). The State has demonstrated
that the differential in benefits reflects the market rates for the affected classes.
4
The Employees allege no statistical disparity between the number of African-Americans
qualified to serve as dieticians, psychologists, nurses and the 21 other statutorily delineated positions
earning SRM and the number of African-Americans actually serving in the positions.
5
In those cases where we have accepted a district court’s expansion of the scope of the
“qualified” pool for purposes of statistical analysis, there was some factor prohibiting a class of
employees’ participation in the disputed sector of the labor market. See, e.g., Joe’s Stone Crab, 220
F.3d at 1277 (noting district court’s consideration of total women in Miami area earning a certain
salary as “qualified pool” instead of merely those women applying for disputed position because
court found that employer’s reputation of refusing to hire women lead to self-selection out of pool).
Again, here there is no alleged prohibiting factor: the employees do not assert that they were
prevented from holding any of the 24 delineated positions.
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See MacPherson v. Univ. of Montevallo, 922 F.2d 766, 772 (11th Cir. 1991)
(accepting employer’s need to compensate certain employees at higher market
rates as legitimate business reason for employment practice challenged under a
disparate impact theory). We are reminded of the Supreme Court’s caution that
“Congress did not intend by Title VII, however, to guarantee a job to every person
regardless of qualifications. . . . What is required . . . is the removal of artificial,
arbitrary, and unnecessary barriers. . . .” Griggs v. Duke Power Co., 91 S. Ct. 849,
853 (1971). Title VII does not guaranty the provision to these Employees of all of
the benefits that the Florida Retirement System has to offer. Instead, Title VII
protects them from the discriminatory withholding of such benefits. Here, FRS’s
limitation of certain benefits to particular classifications of employees reflects a
reasonable reaction to market forces, rather than some “artificial, arbitrary [or]
unnecessary” barrier.
AFFIRMED.
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