Artur Davis v. Legal Services Alabama, Inc. ( 2021 )

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[PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 20-12886
____________________
ARTUR DAVIS,
Plaintiff-Appellant
Cross Appellee,
versus
LEGAL SERVICES ALABAMA, INC.,
LAVEEDA MORGAN BATTLE,
ALEX SMITH,
Defendants-Appellees
Cross Appellants.
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20-12886 Opinion of the Court 2
____________________
Appeals from the United States District Court
for the Middle District of Alabama
D.C. Docket No. 2:18-cv-00026-RAH-JTA
____________________
Before ROSENBAUM and TJOFLAT, Circuit Judges, and STEELE, ∗ Dis-
trict Judge.
PER CURIAM:
Artur Davis appeals the district court’s order granting sum-
mary judgment in favor of Defendants, Legal Services Alabama,
Inc. (“LSA”), and two members of its Board of Directors, LaVeeda
Morgan Battle and Alex Smith. Specifically, Davis contends that
the district court erred in holding that, as a matter of law, the paid
suspension to which LSA subjected Davis could not constitute an
adverse employment action for purposes of his race-discrimination
claim and that Davis had not raised a genuine dispute of material
fact on whether he was constructively discharged. Davis also ar-
gues that the district court erred in holding that LSA’s sharing of
information with a consultant it hired could not constitute publica-
tion for purposes of a state-law defamation claim. For their part,
Defendants cross-appeal the district court’s failure to award them
costs. For the reasons that follow, we affirm the district court’s
∗ Honorable John E. Steele, United States District Judge for the Middle District
of Florida, sitting by designation.
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judgment and dismiss the cross-appeal as premature.
I. 1
Plaintiff-Appellant-Cross-Appellee Davis is a former Con-
gressman, candidate for mayor of Montgomery, Alabama, candi-
date for governor of Alabama, and federal prosecutor. He is Black.
In 2016, he applied for and obtained the position of Executive Di-
rector of LSA, a non-profit law firm providing civil legal services
for low-income Alabamians.
During the course of his work with LSA, Davis began expe-
riencing problems with some of his subordinates and colleagues.
Some of these employees complained about Davis to LSA’s Execu-
tive Committee.
On August 18, 2017, as Davis left work, Battle and LSA
Board Vice Chair Smith approached him. They informed Davis
that the Executive Committee of the Board had voted to suspend
him with pay pending an investigation of the complaints against
him. Along with this news, they delivered to Davis a copy of the
Committee’s resolution suspending him (the “Resolution”) and a
letter outlining the reasons for the suspension (the “Suspension
Letter”): (1) spending decisions outside the approved budget; (2)
1 Since we are reviewing an order granting summary judgment, we view the
evidence and draw all reasonable inferences from it in the light most favorable
to the nonmoving party—here, Davis. Lewis v. City of Union City, 934 F.3d
1169, 1179 (11th Cir. 2019). For that reason, the actual facts may or may not
be as described in this opinion.
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failure to follow LSA policies and procedures when hiring new
staff; (3) creating new initiatives without Board approval; and (4)
creating a hostile work environment for some LSA employees.
After that, Davis learned that LSA had taken other steps re-
lated to his suspension, including posting a security guard in front
of its building and hiring David Mowery, an Alabama political con-
sultant, to handle public relations related to Davis’s suspension.
Davis and Mowery did not have a good relationship because
Mowery had handled one of Davis’s failed political campaigns until
their relationship soured. After that, Mowery had worked for the
campaign of Davis’s opponent in another race. According to Bat-
tle, LSA was unaware of the history between the two men when it
hired Mowery. LSA gave copies of the Resolution and the Suspen-
sion Letter to Mowery.
Four days after he was advised that he was being placed on
paid suspension, on August 22, 2017, Davis sent word to the Board
that he intended to resign from his position as Executive Director,
effective September 23, 2017.
Davis filed suit against LSA, Battle, and Smith. The
amended complaint stated eight causes of action. As relevant here,
they included race discrimination under § 1981 against all defend-
ants; race discrimination under Title VII against LSA; and defama-
tion counts against Battle, Smith, and LSA.
Among other bases for his claims of race discrimination, Da-
vis asserted that LSA’s prior Operations Director and its prior
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Executive Director, both white, had been treated more favorably
than he had, and that they had participated in worse alleged mis-
conduct. The former Operations Director allegedly had engaged
in abusive behavior towards subordinates, but LSA took no action
against her before she left. And the prior Executive Director alleg-
edly had made sexually harassing remarks to female employees and
had abused mileage expenses before he resigned. Neither was
placed on suspension before leaving.
Following discovery, Defendants moved for summary judg-
ment on all Davis’s claims.
The district court granted the motion. As relevant on ap-
peal, it held that, as a matter of law, Davis was not subjected to an
adverse employment action, and that circumstance was fatal to his
discrimination claims. More specifically, the court held both that
being placed on paid leave was not an adverse employment action
and that Davis had not raised a fact issue on his claim that he had
been constructively discharged.
The district court also granted summary judgment as to Da-
vis’s defamation claims, holding that, under Alabama law, the com-
plained-of disclosure (LSA’s provision to Mowery of the Resolution
and Suspension Letter) could not constitute “publication”—an es-
sential element of defamation.
The district court entered a final judgment on July 16, 2020.
Davis timely filed a notice of appeal. Davis appeals the district
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court’s summary-judgment rulings with respect to his discrimina-
tion and defamation claims.
After Davis filed his notice of appeal, Defendants filed a Bill
of Costs in the district court. The day after filing their Bill of Costs,
Defendants filed their own notice of appeal, complaining of the dis-
trict court’s failure to award them costs.
II.
We review de novo a district court’s grant of summary judg-
ment, using the same legal standards the district court must apply.
Alvarez v. Royal Atl. Devs., Inc., 610 F.3d 1253, 1263 (11th Cir.
2010). Summary judgment is appropriate when the movant shows
no genuine dispute exists as to any material fact and the movant is
entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). In
determining whether the movant has met this burden, courts must
view the evidence in the light most favorable to the non-movant.
Alvarez, 610 F.3d at 1263–64.
When a movant shows that no genuine dispute of material
fact exists, the burden shifts to the non-movant to demonstrate a
genuine issue of material fact that precludes summary judgment.
Clark v. Coats & Clark, Inc., 929 F.2d 604, 608 (11th Cir. 1991). The
non-movant must go beyond the pleadings and present competent
evidence of specific facts to show that a genuine issue exists. Young
v. City of Palm Bay, 358 F.3d 859, 860 (11th Cir. 2004).
III.
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A. LSA did not subject Davis to an adverse employment action
Title VII of the Civil Rights Act prohibits employers from
discriminating against “any individual with respect to his compen-
sation, terms, conditions, or privileges of employment” because of
that individual’s race. 42 U.S.C. § 2000e-2(a)(1). Section 1981 sim-
ilarly prohibits race discrimination in employment. 42 U.S.C. §
1981. Claims of race discrimination under both Title VII and § 1981
require a showing that the employer subjected the employee to an
“adverse employment action.” 2 Quigg, 814 F.3d at 1235 (recogniz-
ing that a Title VII claim requires an adverse employment action);
Smelter v. S. Home Care Servs. Inc., 904 F.3d 1276, 1283 n.3 (11th
Cir. 2018) (recognizing that Title VII claims and § 1981 claims
2 Davis complains that the district court improperly applied the McDonnell
Douglas framework when evaluating his race-discrimination claim because his
claim was a “mixed-motive” claim. McDonnell Douglas v. Green, 411 U.S.
792 (1973). We need not decide whether, in fact, his claim was a mixed-motive
one because it makes no difference to the outcome here. To be sure, the
McDonnell Douglas framework does not apply in a mixed-motive case. Quigg
v. Thomas Cnty. Sch. Dist., 814 F.3d 1227, 1239 (11th Cir. 2016). But a mixed-
motive plaintiff—that is, a plaintiff who claims that another factor and unlaw-
ful discrimination contributed to the employer’s decision to take adverse em-
ployment action—must show “(1) the defendant took an adverse employment
action against the plaintiff; and (2) [a protected characteristic] was a motivating
factor for the defendant’s adverse employment action.” Id. (alteration in orig-
inal). Because the correct framework for a mixed-motive claim also requires
the employee to establish he was subjected to an adverse employment action
and because the district court granted summary judgment on solely the basis
that Davis failed to show an adverse employment action, any error by the dis-
trict court in applying McDonnell Douglas was harmless.
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“have the same requirements of proof and utilize the same analyt-
ical framework”) (citation omitted).
When, as here, we are not talking about a hostile-work-en-
vironment claim, adverse employment actions include “tangible
employment actions,” which are those actions “that affect contin-
ued employment or pay—things like terminations, demotions, sus-
pensions without pay, and pay raises or cuts—as well as other
things that are similarly significant standing alone.” Monaghan v.
Worldpay US, Inc., 955 F.3d 855, 860 (11th Cir. 2020).
Davis appeals the district court’s conclusion that suspension
with pay pending an investigation categorically does not constitute
an adverse employment action and its holding that Davis was not
subjected to a constructive discharge.
i. Davis’s paid suspension here was not an adverse em-
ployment action
Whether suspension with pay can rise to the level of an ad-
verse employment action in discrimination cases appears to be an
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issue of first impression in this Circuit. 3 Many of our sister circuits,
however, have already addressed the issue.
No Circuit has held that a simple paid suspension, in and of
itself, constitutes an adverse employment action. See Joseph v.
Leavitt, 465 F.3d 87 (2d Cir. 2006) (holding that paid leave there did
not constitute an adverse employment action but leaving open the
possibility that a paid suspension or accompanying investigation
carried out in an exceptionally unreasonable or dilatory way may
constitute an adverse employment action); Jones v. Se. Pa. Transp.
Auth., 796 F.3d 323 (3d Cir. 2015) (same);Von Gunten v. Maryland,
243 F.3d 858 (4th Cir. 2001) abrogated on other grounds by Bur-
lington N., 548 U.S. at 68 (holding that, categorically, paid suspen-
sion or leave is not an adverse employment action); Breaux v. City
of Garland, 205 F.3d 150 (5th Cir. 2000) (same); Peltier v. United
States, 388 F.3d 984 (6th Cir. 2004) (same); Nichols v. S. Ill. Univ.-
Edwardsville, 510 F.3d 772 (7th Cir. 2007) (same); Pulczinski v.
3 We have previously acknowledged that paid suspension may constitute an
adverse employment action in the retaliation context. See Hairston v. Gaines-
ville Sun Pub. Co., 9 F.3d 913, 920 (11th Cir. 1993) (“In August of 1990, plaintiff
was the subject of an adverse employment action; he was suspended with pay
for thirty days.”). The standard to show an adverse employment decision in a
retaliation case is more relaxed, with the employee having to show only that
the mistreatment “well might have dissuaded a reasonable worker from mak-
ing or supporting a charge of discrimination.” Burlington N. & Santa Fe Ry.
Co. v. White, 548 U.S. 53, 68 (2006). But we have held that a five-day suspen-
sion with pay pending an investigation, without more, is not an adverse action
for purposes of a First Amendment retaliation claim. Bell v. Sheriff of Broward
Cnty., 6 F.4th 1374, 1379 (11th Cir. 2021).
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Trinity Structural Towers, Inc., 691 F.3d 996 (8th Cir. 2012) (same);
Haddon v. Exec. Residence at White House, 313 F.3d 1352 (Fed.
Cir. 2002) (same).
We agree with our sister Circuits that a simple paid suspen-
sion is not an adverse employment action. A paid suspension can
be a useful tool for an employer to hit “pause” and investigate
when an employee has been accused of wrongdoing. And that is
particularly so in a case like this one—where the employee under
investigation is in charge of all the employees who are the wit-
nesses. As a practical matter, employers cannot expect employees
to speak freely to investigators when the person under investiga-
tion is looking over their shoulders. Employers should be able to
utilize the paid-suspension tool in good faith, when necessary,
without fear of Title VII liability.
Davis does not disagree that a simple paid suspension does
not rise to the level of an adverse employment action. Rather, he
asserts that the manner in which his suspension was handled, and
the circumstances that accompanied it, combined to amount to an
adverse employment action. We therefore must consider whether
the circumstances here escalated Davis’s paid suspension to an ad-
verse employment action. We conclude they did not.
Davis maintains that the following circumstances made his
paid suspension atypical and caused it to constitute an adverse em-
ployment action: (1) LSA disclosed the suspension to Mowery; (2)
the suspension occurred days before a high-profile LSA reception
with the state bar; (3) LSA compiled a narrative of reasons for the
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suspension in the Suspension Letter; and (4) LSA placed a guard in
the building in the aftermath of the suspension. Davis also argues
that because he was the Executive Director, he served as the public
face of LSA. And as a result, Davis asserts, the paid suspension was
more adverse to him than it would be to a low-level employee.
We disagree. Davis has offered no evidence that LSA pur-
posely hired Mowery because of the bad blood between Mowery
and Davis or intentionally timed the suspension with the state bar
event to embarrass Davis. And as we explain in Section III.B, on
this record, we cannot conclude that LSA’s disclosure of the sus-
pension to Mowery was improper or otherwise punitive. The rec-
ord likewise contains no evidence that placing a guard at the build-
ing after a suspension was out of the ordinary for LSA. And it is
perfectly reasonable that LSA would compile its reasons for the sus-
pension in a document to give to Davis to avoid any accusations of
arbitrariness. Last, Davis has offered no authority, and we have
found none, to support the notion that whether an action consti-
tutes an adverse employment action should depend on whether
the employee is high-ranking in the organization. Put simply, the
circumstances of Davis’s paid suspension do not rise to the level of
an adverse employment action.
ii. Davis was not constructively discharged
Davis next argues that, even if his paid suspension does not
amount to an adverse employment action, his alleged constructive
discharge does. Under Title VII, a constructive discharge is tanta-
mount to an actual discharge, so it constitutes an adverse
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employment action. Green v. Brennan, 578 U.S. 547, 555 (2016);
see also id. at 560 (“The whole point of allowing an employee to
claim ‘constructive’ discharge is that in circumstances of discrimi-
nation so intolerable that a reasonable person would resign, we
treat the employee’s resignation as though the employer actually
fired him.”); Akins v. Fulton Cnty., 420 F.3d 1293, 1300–01 (11th
Cir. 2005) (“Constructive discharge negatively affects an em-
ployee’s job status, and therefore constitutes an adverse employ-
ment action.”). Constructive discharge occurs when an employer
deliberately makes an employee’s working conditions intolerable
and thereby forces him to quit his job. Bryant v. Jones, 575 F.3d
1281, 1298 (11th Cir. 2009).
The district court held that Davis abandoned his construc-
tive-discharge claim when he failed to address the Defendants’ ar-
gument that Davis’s voluntary resignation meant there could be no
constructive discharge as a matter of law. Nevertheless, the district
court went on to hold that, even if Davis had not abandoned the
claim, LSA was still entitled to summary judgment on Davis’s the-
ory of constructive discharge. We do not address the district
court’s holding on abandonment because its ultimate conclusion
that Davis was not constructively discharged was correct, in any
case.
The district court held that “a Title VII constructive dis-
charge claim generally cannot be based upon an employee’s resig-
nation under the subjective belief that an investigation would be
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unfair or unjust.” To support this conclusion, the district court re-
lied on Hargray v. City of Hallandale, 57 F.3d 1560 (11th Cir. 1995).
We do not agree that Hargray is instructive in this regard.
Rather, Hargray is about whether a resignation from public em-
ployment that had been requested by the employer was sufficiently
involuntary to trigger the protections of the Due Process Clause.
Id. at 1567–68.
Davis correctly points out in his brief that “whether a gov-
ernment entity’s conduct violates a litigant’s constitutional rights
. . . is a more demanding standard than whether a litigant advances
to the post prima facie stage, or its equivalent, in an employment
lawsuit.” Appellant’s Brief at 20–21. The district court did apply
too exacting a standard to determine whether Davis had raised an
issue of fact on whether he was constructively discharged. Instead,
the correct standard is the one articulated in Green: whether the
employee can demonstrate that he was discriminated against by his
employer to the point where a reasonable person in his position
would have felt compelled to resign. 578 U.S. at 555.
Nevertheless, the district court arrived at the correct ulti-
mate conclusion. And we may affirm on any basis in the record,
even if the district court did not actually rely on that basis. Henley
v. Payne, 945 F.3d 1320, 1333 (11th Cir. 2019).
Even under the proper, more relaxed standard, no reasona-
ble factfinder would conclude that a reasonable person would have
felt compelled to resign under Davis’s circumstances. Instead,
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Davis offered evidence of unpleasant disputes and disagreements
with coworkers who then filed complaints against Davis. The evi-
dence does not paint a picture of intense, intolerable harassment
usually seen in cases of constructive discharge. And because paid
suspension alone is not an adverse employment action, an em-
ployee’s resignation in response to it cannot be an adverse employ-
ment action, either. Nor did Davis give LSA the chance to remedy
any allegedly intolerable working conditions because he notified
LSA of his intention to resign so soon after the suspension—within
four days. See Kilgore v. Thompson & Brock Mgmt., Inc., 93 F.3d
752, 754 (11th Cir. 1996) (“A constructive discharge will generally
not be found if the employer is not given sufficient time to remedy
the situation.”).
For these reasons, Davis failed to establish that he had suf-
fered any adverse employment action. As a result, his substantive
discrimination claims necessarily failed, and the district court’s
grant of summary judgment on them was appropriate. 4
4 Davis also complains that the district court ruled that race was not a moti-
vating factor in any adverse employment action taken against Davis. But
while the district court did acknowledge that Davis’s response to the motion
for summary judgment “maintain[ed] that there [was] ample evidence that
race was a motivating factor in [Davis’s] suspension,” it nonetheless decided
to “confine its inquiry . . . strictly to whether there was an actionable adverse
employment action.” ECF No. 49 at 19–20. For that reason, no holding on
motivation is before this Court, and we offer no opinion on it.
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B. The LSA’s disclosure of the Resolution and Suspension Let-
ter to Mowery did not amount to publication under Ala-
bama law
Next, Davis appeals the district court’s conclusion that he
failed, as a matter of law, to meet the publication element of his
defamation claim. Davis contends that Defendants defamed him
when they gave the Resolution and Suspension Letter to Mowery.
For its part, LSA asserts that it provided Mowery with the docu-
ments so Mowery could provide public-relations guidance con-
cerning Davis’s suspension.
Under Alabama law, a defamation plaintiff must establish all
the following to set forth a defamation claim: (1) the defendant was
at least negligent (2) in publishing (3) a false and defamatory state-
ment to another; (4) that statement concerned the plaintiff; and (5)
the claim is actionable either without having to prove special harm
or upon allegations and proof of special harm. Gary v. Crouch, 867
So. 2d 310, 315 (Ala. 2003).
The district court held that LSA’s provision of the docu-
ments to Mowery did not constitute publication because Mowery
was acting as LSA’s agent at the time of the disclosure. In so hold-
ing, the court relied on Brackin v. Trimmier L. Firm, 897 So. 2d 207(Ala. 2004). There, the Family Security Credit Union (“FSCU”)
identified various improprieties related to a former employee.
Brackin, 897 So. 2d at 209. In response, the Alabama Credit Union
Administration ordered FSCU to conduct an investigation of the
improprieties. Id. FSCU retained a law firm to conduct the
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investigation, which in turn retained Jo Lynn Rutledge, a certified
public accountant. Id. As part of the investigation, various em-
ployees told Rutledge that Karen Brackin, an FSCU employee at
the time, had instructed employees to change due dates on loans
and make other changes to loan documents. Id. at 210. Eventually,
Brackin sued FSCU on various theories, one of them being defama-
tion based on FSCU employees’ disclosures of information about
Brackin to Rutledge. Id. at 215.
The Supreme Court of Alabama held that no publication of
the statements occurred when the employees gave the information
to Rutledge. Id. at 221. This was so, the court reasoned, because
Rutledge was retained by FSCU and the law firm to conduct the
investigation. So the information that the employees gave
Rutledge fell within the scope of the agency relationship between
FSCU and Rutledge. “[T]he employees’ communications to
Rutledge did not amount to ‘publications’ to a third party for pur-
poses of establishing a defamation claim.” Id. at 222.
In his brief, Davis attempts to distinguish Brackin by point-
ing out that the investigation there was ordered by the state regu-
latory agency. True, but that is legally irrelevant to the fact that an
agency relationship between Rutledge and FSCU existed. And that
relationship, as we have explained, served as the basis for the
Court’s decision.
Davis also argues that the district court erred by conflating
a “consultant” relationship with an agency relationship, and he
contends that the district court should have applied traditional
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agency principles to determine whether Mowery was truly acting
as LSA’s agent or rather, as an independent contractor. In Davis’s
view, LSA can claim that giving Mowery the documents was not
publication only if Mowery was LSA’s employee.
We are not persuaded. Being an “agent” and being an “in-
dependent contractor” are not necessarily mutually exclusive. One
can be in an agency relationship with another without being that
person’s employee. See Brown By & Through Brown v. Com. Dis-
patch Publ’g Co., 504 So. 2d 245, 246 (Ala. 1987) (emphasizing that
“test of agency is the right of control,” not simply employer-em-
ployee relationship); see also 1-800 Contacts, Inc. v. Lens.com, Inc.,
722 F.3d 1229, 1251 (10th Cir. 2013) (“[A]n independent contractor
can be an agent. An agent need not be an employee.”). Indeed, the
Alabama Supreme Court held that Rutledge was an “agent” of
FSCU for publication purposes, even though Rutledge was not
FSCU’s employee. See Brackin, 897 So. 2d at 222. If Davis were
correct, employers could not hire consultants and experts to assist
them in human-resources matters. Otherwise, they would risk def-
amation liability every time they hired outside consultants, inves-
tigators, and advisors and provided them with the information they
needed to do their jobs.
For these reasons, the district court correctly held that LSA’s
provision of the Resolution and Suspension Letter to Mowery did
not constitute publication for purposes of a defamation claim un-
der Alabama law.
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C. We lack jurisdiction over Defendants’ cross-appeal
In their cross-appeal, Defendants point out that the district
court was silent as to the award of costs under Federal Rule of Civil
Procedure 54(d). Based on this circumstance, Defendants argue
that the district court erred by denying them costs without stating
a basis for doing so. In Defendants’ view, they are entitled under
Rule 54(d)(1) to their costs because the district court made no find-
ings of misconduct by Defendants that would justify any sanction.
But Defendants do not mention in their brief the bill of costs they
filed after the district court entered the final judgment and Davis
filed his notice of appeal.
In the absence of circumstances not present here, an appel-
late court’s jurisdiction is limited to appeals of final decisions. 28
U.S.C. § 1291; Fort v. Roadway Exp., Inc., 746 F.2d 744, 747 (11th
Cir. 1984). But a district court’s decision regarding costs is not final
until the amount is fixed. See Mekdeci v. Merrell Nat’l Lab’ys, 711
F.2d 1510, 1523 (11th Cir. 1983) (finding lack of jurisdiction to re-
view a district court’s order that it intended to award costs but had
yet to fix the amount).
Federal Rule of Civil Procedure 54(d)(1) states that unless a
federal statute, the Federal Rules, or a court order provides other-
wise, costs should be allowed to the prevailing party, and the court
clerk “may tax costs on 14 days’ notice.” The Middle District of
Alabama’s Local Rule 54.1 directs that requests for taxation of costs
under Rule 54(d) shall be filed with the clerk within 35 days of entry
of final judgment.
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Here, Defendants’ cross-appeal is premature because the
judgment, while final as a general matter, was not a final decision
on costs, and the district court has not acted on the bill of costs
Defendants filed after judgment. A district court is not required to
address costs in its judgment, and silence is not somehow an im-
plicit denial of costs. To the contrary, Local Rule 54.1 contem-
plates that the prevailing party will not even seek costs until after
the district court enters final judgment. Because the judgment
from which the Defendants cross appeal is not final as to the costs
issue—the sole subject of their appeal—we lack jurisdiction over
the cross-appeal and therefore dismiss it.
IV.
For the foregoing reasons, the judgment of the district court
is affirmed, and the cross-appeal is dismissed.
AFFIRMED; CROSS-APPEAL DISMISSED.