Dr. Jasmine Younge v. Fulton Judicial Circuit District Attorney's Office, Georgia

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[DO NOT PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 23-11418

____________________

DR. JASMINE YOUNGE,

Plaintiff-Appellant,

versus

FULTON JUDICIAL CIRCUIT DISTRICT ATTORNEY'S

OFFICE, GEORGIA,

Defendant-Appellee,

PAUL L. HOWARD, JR.,

Fulton County District Attorney; in his individual capacity,

Defendant.

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2 Opinion of the Court 23-11418

____________________

Appeal from the United States District Court

for the Northern District of Georgia

D.C. Docket No. 1:20-cv-00684-WMR

____________________

Before BRANCH, LUCK, and LAGOA, Circuit Judges.

PER CURIAM:

Title VII of the Civil Rights Act of 1964 (“Title VII”), 42

U.S.C. §§ 2000e et seq., on its own terms, does not extend its

protections to elected officials or their “personal staff.” 42 U.S.C.

§ 2000e(f). 1 And in Georgia, district attorneys are elected officials.

Yet after Jasmine Younge, who was third-in-command of the

Fulton County District Attorney’s Office (“the DA’s Office”),

brought this Title VII suit against her employer, 2 the DA’s Office

failed to raise Title VII’s personal-staff exemption until after

discovery closed. The DA’s Office did not “realize[] this was an

issue” until it began preparing its motion for summary judgment.

1 Under Title VII, an “employee” does not include “any person elected to

public office in any State or political subdivision of any State by the qualified

voters thereof, or any person chosen by such officer to be on such officer’s

personal staff.” 42 U.S.C. § 2000e(f).

2 Paul L. Howard, Jr. served as Fulton County DA at all relevant times. He,

however, is not a party to this appeal in either his personal or official capacity.

In this opinion, we refer to both the DA’s Office (as an entity and party) and

Howard (as a person) where relevant.

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The district court allowed the DA’s Office to assert the

personal-staff exemption for the first time as an affirmative defense

at summary judgment because the court found that Younge was

not prejudiced by the DA’s Office’s failure to timely plead that

defense. The district court then granted summary judgment to the

DA’s Office after finding that Younge was a member of Howard’s

personal staff.

Younge appeals that decision and argues (1) that the district

court should have applied a good-cause standard, not a prejudice

standard, to determine whether the DA’s Office could assert an

unpleaded affirmative defense at summary judgment; (2) that the

DA’s Office’s late defense prejudiced her; and (3) that she was not

a member of Howard’s personal staff by the time she was fired.

This appeal requires us to decide whether the district court

properly considered the DA’s Office’s belated defense when it

granted summary judgment to the DA’s Office based on the

personal-staff exemption. After careful review, and with the

benefit of oral argument, we affirm.

I. Background

In April 2019, Howard hired Younge as Deputy Chief of Staff

and Director of Policy and Programs of the DA’s Office at a salary

of $120,282. Howard initially tried to hire Younge as a Director at

a salary of $125,000, but Fulton County did not allow him to hire

Younge at that title and salary combination. Howard made

Younge’s formal title “Deputy Chief of Staff” to allow him to pay a

salary close to the $125,000 that Younge had requested. Younge’s

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offer letter specified that she would “be assigned to the Policy

Division under the supervision of the District Attorney,” and her

offer was “contingent upon the approval of the Fulton County

Personnel Department and Finance Department.”

Younge began working for the DA’s Office the next month.

Younge’s job description stated that she would oversee “policy

implementation and development, management and oversight of

bureaus, strategic communications, and responsive constituent

services.” Her job description also provided that she would be the

principal writer of criminal justice and crime prevention policies

and programs, and she would develop, implement, and administer

the programs.3

While Younge worked for the DA’s Office, she was third-in-

command after Howard and his Chief of Staff, Lynne Nelson.

Younge supervised more than thirty employees and fifteen to

twenty different policies and programs implemented by the DA’s

Office. In so doing, Younge testified that she frequently met with

dignitaries, community leaders, and members of the public who

visited the DA’s Office. Howard also attended these meetings.

In carrying out her duties, Younge and Howard worked

closely together. Howard was Younge’s only supervisor, and the

two discussed Younge’s work and programs every day. Howard

even sent Younge messages on the weekends. As Younge averred,

3 Younge contends that her predecessor created most of the programs she

worked on, meaning she merely ran the programs.

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Howard “demanded constant availability around the clock” from

her. Younge testified that her schedule was “pretty much the

schedule that . . . Howard had.” Howard averred that he closely

supervised Younge’s work because voters would judge him based

on how Younge interacted with the public and implemented

policies and projects on behalf of the DA’s Office. If Howard

“needed something done[,] [Younge] would handle it.” Younge

was “always in and out” of Howard’s office because she was one of

“the essential folks” in the DA’s Office. Younge testified that she

was “literally [Howard’s] go-to person for almost everything,” and

was “one of the few on staff that was just able to just walk into his

office at any time.” Howard similarly testified that Younge was “a

key member” and “a high ranking part” of the DA’s Office.

Around July 1, 2019, approximately two months after she

started her job, Younge told Howard that she was pregnant.

Afterwards, Howard stopped meeting with Younge, excluded her

from his meetings with others, treated her dismissively, and

reassigned some of her work duties. Two weeks later, he fired

Younge.

Following her termination, Younge sued the DA’s Office

for, in relevant part, pregnancy discrimination in violation of Title

VII. 4 In its answer, the DA’s Office asserted several affirmative

4 Younge’s complaint also alleged claims for retaliation in violation of Title

VII, race discrimination in violation of Title VII, race discrimination in

violation of 42 U.S.C. § 1981, and gender-based discrimination in violation of

the Fourteenth Amendment’s Equal Protection Clause and 42 U.S.C. § 1983.

On the DA’s Office’s motion to dismiss, the district court dismissed all of

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defenses but did not assert that Younge was “personal staff” of an

elected official exempt from Title VII’s protections.5 On March 14,

2022, after discovery had closed, the DA’s Office notified Younge

and the district court of its intent to raise the personal-staff

exemption at summary judgment. Two months later, the DA’s

Office moved for summary judgment and argued that Younge was

part of Howard’s “personal staff” exempt from Title VII’s

protection. Younge opposed summary judgment and argued that

the DA’s Office could not belatedly raise this affirmative defense

absent good cause.

After oral argument on the DA’s Office’s motion for

summary judgment, a magistrate judge issued a report and

recommendation (“R&R”) finding that the DA’s Office could assert

the personal-staff exemption as a belated affirmative defense

because the late assertion would not prejudice Younge. Then, the

magistrate judge recommended summary judgment in favor of the

DA’s Office because there was no genuine dispute of material fact

that Younge was part of Howard’s personal staff.

Over Younge’s objections, the district court agreed that the

DA’s Office could assert the personal-staff exemption as an

Younge’s claims except for pregnancy discrimination and retaliation under

Title VII. At summary judgment, Younge abandoned her retaliation claim.

Accordingly, Younge’s pregnancy-discrimination claim under Title VII is her

sole remaining claim.

5 Neither party disputes that the district attorney for a judicial circuit is an

elected position in Georgia. See O.C.G.A. § 15-18-3(1).

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affirmative defense and that the DA’s Office was entitled to

summary judgment because of this defense. Accordingly, the

district court granted summary judgment to the DA’s Office.

Younge timely appealed.

II. Discussion

Younge argues that the district court erred by (1) applying a

prejudice standard to determine whether the DA’s Office could

assert an unpleaded affirmative defense at summary judgment;

(2) finding that the DA’s Office’s late defense did not prejudice her;

and (3) finding that she was a member of Howard’s personal staff.

We address each issue in turn.

A. We assume without deciding that the personal-staff

exemption is an affirmative defense

As relevant here, Title VII provides that an employer may

not “discriminate against any individual with respect to his [or her]

compensation, terms, conditions, or privileges of employment,

because of such individual’s race, color, religion, sex, or national

origin.” 42 U.S.C. § 2000e-2(a)(1). Title VII does not define the

term “any individual,” but “we have held that only those plaintiffs

who are ‘employees’ may bring a Title VII suit.” Llampallas v. Mini-

Circuits, Lab, Inc., 163 F.3d 1236, 1242 (11th Cir. 1998). Title VII

defines “employee” to mean “an individual employed by an

employer, except that the term ‘employee’ shall not include any

person elected to public office in any State or political subdivision

of any State by the qualified voters thereof, or any person chosen

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by such officer to be on such officer’s personal staff.” 42 U.S.C.

§ 2000e(f).

We have never addressed whether Title VII’s exemptions to

employee status are affirmative defenses or elements of a plaintiff’s

prima facie case. Our sister circuits that have addressed the question

have come to different conclusions. In the Fourth Circuit,

“employee status is an element of a substantive Title VII claim”

which defendants can challenge “by a motion under Fed. R. Civ. P.

12(b)(6) for failure to state a claim.” Curl v. Reavis, 740 F.2d 1323,

1327 n.2 (4th Cir. 1984). But in the Fifth Circuit, the personal-staff

exemption is an affirmative defense because it “allows the

defendant to avoid liability even if the plaintiff meets his burden of

proof under Title VII.” Oden v. Oktibbeha Cnty., 246 F.3d 458, 467

(5th Cir. 2001). This difference matters because it changes which

party must include the exemption in its pleadings. See Fed. R. Civ.

P. 8(a)(2), (b)(1)(A).

We need not decide this issue today, however, because the

parties have fully litigated this case as if the personal-staff

exemption is an affirmative defense. The magistrate judge agreed

with the Fifth Circuit and recommended treating the personal-staff

exemption as an affirmative defense. The DA’s Office did not

object to that recommendation. The district court treated the

personal-staff exemption as an affirmative defense, and the DA’s

Office does not appeal that holding. Indeed, the DA’s Office argues

to us on appeal that we need not decide this question and treats the

personal-staff exemption as an affirmative defense in its brief.

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Accordingly, we assume without deciding that Title VII’s personal-

staff exemption is an affirmative defense.

B. A district court may consider a defendant’s unpleaded

affirmative defense at summary judgment if there is no

prejudice to the plaintiff

The district court determined that it could consider the DA’s

Office’s personal-staff defense because Younge was not prejudiced

by the DA’s Office’s failure to timely plead that defense. Younge

argues that this determination was error because the DA’s Office

failed to show good cause for not timely pleading the personal-staff

exemption. The DA’s Office responds that the district court

correctly considered whether Younge was prejudiced by the DA’s

Office’s failure to timely plead the personal-staff exemption.

We review a district court’s ruling on waiver of affirmative

defenses for abuse of discretion. See E.E.O.C. v. White & Son Enters.,

881 F.2d 1006, 1009 (11th Cir. 1989). A district court abuses its

discretion when it applies an incorrect legal standard, relies on

clearly erroneous factual findings, or commits a clear error of

judgment. Bradley v. King, 556 F.3d 1225, 1229 (11th Cir. 2009).

Generally, Federal Rule of Civil Procedure 8(c) requires a

party to “affirmatively state any avoidance or affirmative defense”

when “responding to a pleading.” Fed. R. Civ. P. 8(c)(1). We have

explained the consequences of failing to comply with Rule 8(c):

[T]he general rule is that, when a party fails to raise

an affirmative defense in the pleadings, that party

waives its right to raise the issue at trial. However,

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the liberal pleading rules established by the Federal

Rules of Civil Procedure apply to the pleading of

affirmative defenses. . . . When a plaintiff has notice

that an affirmative defense will be raised at trial, the

defendant’s failure to comply with Rule 8(c) does not

cause the plaintiff any prejudice. And, when the

failure to raise an affirmative defense does not

prejudice the plaintiff, it is not error for the trial court

to hear evidence on the issue.

Hassan v. U.S. Postal Serv., 842 F.2d 260, 263 (11th Cir. 1988)

(internal citation omitted). Since Hassan, we have repeatedly

reaffirmed that a district court may receive evidence of an

unpleaded affirmative defense if the plaintiff was not “prejudiced”

by the defendant’s failure to plead the defense in its answer. See,

e.g., Pensacola Motor Sales Inc. v. E. Shore Toyota, LLC, 684 F.3d 1211,

1221–22 (11th Cir. 2012) (holding that “[t]he district court did not

abuse its discretion in allowing [the defendant] to raise” an

affirmative defense “a month and a half before trial in a motion for

summary judgment” because the plaintiff “ha[d] not suggested that

it suffered any prejudice from the delay in asserting the defense”);

Proctor v. Fluor Enters., Inc., 494 F.3d 1337, 1350–52 (11th Cir. 2007)

(holding that “the district court erred in excluding evidence”

concerning an affirmative defense because the plaintiff “had notice

of [the affirmative defense] and was not prejudiced”); Miranda de

Villalba v. Coutts & Co. (USA) Int’l, 250 F.3d 1351, 1353 (11th Cir.

2001) (holding that at summary judgment, “[a] court may consider

an affirmative defense that did not appear in the answer, if the

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plaintiff has suffered no prejudice from the failure to raise the

defense in a timely fashion”); Grant v. Preferred Rsch., Inc., 885 F.2d

795, 797–98 (11th Cir. 1989) (“When there is no prejudice, the trial

court does not err by hearing evidence on [an affirmative

defense].”); see also Mitchell v. Jefferson Cnty. Bd. of Educ., 936 F.2d

539, 544 (11th Cir. 1991); Easterwood v. CSX Transp., Inc., 933 F.2d

1548, 1551 (11th Cir. 1991).

The DA’s Office did not plead the personal-staff exemption

in its answer. Accordingly, we next consider whether the DA’s

Office prejudiced Younge by asserting the personal-staff exemption

after discovery closed. See Hassan, 842 F.2d at 263.

C. The DA’s Office did not prejudice Younge by belatedly

asserting the personal-staff exemption

The district court, over Younge’s objection, determined that

Younge did not suffer any prejudice arising from the DA’s Office’s

late reliance on the personal-staff exemption. On appeal, Younge

argues that consideration of the DA’s Office’s unpleaded

affirmative defense prejudiced her because Younge “was denied

the opportunity to conduct purposeful discovery on” the personal-

staff exemption.

We review a district court’s ruling on waiver of an

affirmative defense for abuse of discretion. See White & Son Enters.,

881 F.2d at 1009. In Hassan, we held that “there was no prejudice”

to the plaintiff arising from the defendant’s unpleaded affirmative

defense. 842 F.2d at 263. We reached that conclusion because,

during discovery, the defendant deposed the plaintiff and

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“questioned her extensively” about facts pertaining to the

affirmative defense before the defendant first asserted the defense

at trial. Id. The defendant also asked the plaintiff about facts

underlying the affirmative defense in an interrogatory. Id. Thus,

the defendant’s unpleaded affirmative defense did not “unfairly

surprise[] or prejudice[] the plaintiff.” Id. at 264.

Here, the district court similarly determined that Younge

was not prejudiced because “discovery focused on matters highly

relevant to the ‘personal staff’ exemption.” As we will discuss

further below, courts consider six factors when determining if an

individual is on an elected official’s personal staff. See Laurie v. Ala.

Ct. of Crim. Appeals, 88 F. Supp. 2d 1334, 1338 (M.D. Ala. 2000), aff’d,

256 F.3d 1266 (11th Cir. 2001). And here, as we will detail, the

record contains copious discovery evidence concerning each of the

six factors. Thus, “we cannot say that the [DA’s Office’s] argument

unfairly surprised or prejudiced” Younge. Hassan, 842 F.2d at 263–

64. 6

Tellingly, Younge never moved to reopen discovery despite

the magistrate judge’s willingness to do so. Both below and on

appeal, Younge has attempted to identify more discovery she

would have sought if the DA’s Office timely pleaded this defense.

6 We also note that Younge conceded below that the DA’s Office’s discovery

responses made “five references to [Younge] being a member of Howard’s

‘personal staff.’” That concession bolsters our conclusion that Younge was

not “unfairly surprised or prejudiced” by the personal-staff exemption.

Hassan, 842 F.2d at 263–64.

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But we cannot credit Younge’s argument that she suffered

prejudice when she rejected the magistrate judge’s invitation to

seek more discovery.7 Accordingly, the district court did not

clearly err by finding that Younge had not suffered prejudice from

the DA’s Office’s late assertion of the personal-staff exemption.8

7 For example, Younge proposed to identify, subpoena, and depose various

members of the public to gauge their opinion on whether they believed

Younge represented Howard. Younge, however, failed to identify any

particular people she would have sought to depose, so we agree with the R&R

that this discovery would be a “mere fishing expedition.” Moreover, Younge

proposed further discovery on Fulton County’s regulations governing

Howard’s ability to hire staff. But discovery about regulations and how they

apply is legal research, not fact discovery.

8 In opposition to this conclusion, Younge cites Federal Rules of Civil

Procedure 15 and 16 and a separate line of our cases applying a good-cause

standard to late motions to amend pleadings, and she argues that the good-

cause and prejudice standards conflict in this case. We find no such conflict:

we simply treat unpleaded affirmative defenses differently from late motions

to amend pleadings. The former requires a showing of no prejudice, while

the latter requires a showing of good cause. Compare, e.g., Grant, 885 F.2d at

797–98 (“When there is no prejudice, the trial court does not err by hearing

evidence on [an unpleaded affirmative defense].”), with, e.g., Sosa v. Airprint

Sys., Inc., 133 F.3d 1417, 1418–19 (11th Cir. 1998) (“[B]ecause Sosa’s motion to

amend was filed after the scheduling order’s deadline, she must first

demonstrate good cause under Rule 16(b) before we will consider whether

amendment is proper under Rule 15(a).”). Each of the cases Younge cites in

which we applied the good-cause standard were late-amendment cases

governed by Rules 15 and 16, not unpleaded-affirmative-defense cases. In

other words, in each of the cited cases, a party affirmatively moved to amend

a pleading instead of—as the DA’s Office did here—raising an affirmative

defense without amendment. See, e.g., Haynes v. McCalla Raymer, LLC, 793 F.3d

1246, 1250 (11th Cir. 2015); Maynard v. Bd. of Regents, 342 F.3d 1281, 1287 (11th

Cir. 2003). As discussed, under the rule that squarely governs this case,

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We next turn to whether Younge was a member of Howard’s

personal staff.

D. Application of the personal-staff exemption

The district court determined that Younge was on Howard’s

personal staff. Thus, the district court granted summary judgment

to the DA’s Office. On appeal, Younge argues that the district court

did not view the evidence in the light most favorable to her, and

that genuine disputes of material fact exist concerning her status as

a member of Howard’s personal staff. The DA’s Office responds

that the evidence is “overwhelming” that Younge was on

Howard’s personal staff.

“We review de novo a district court’s grant of summary

judgment, applying the same standard as the district court.” Snell

v. United Specialty Ins. Co., 102 F.4th 1208, 1214 (11th Cir. 2024)

(quotation omitted). “Namely, summary judgment is appropriate

‘if the movant shows that there is no genuine dispute as to any

material fact and the movant is entitled to judgment as a matter of

law.’” Id. (quoting Fed. R. Civ. P. 56(a)). Our job is “not . . . to

weigh the evidence and determine the truth of the matter but to

determine whether there is a genuine issue for trial.” Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). “The mere existence of

some evidence to support the non-moving party is not sufficient

for denial of summary judgment; there must be ‘sufficient evidence

Younge suffered no prejudice. See Hassan, 842 F.2d at 263–64; Grant, 885 F.2d

at 797–98.

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favoring the nonmoving party for a jury to return a verdict for that

party.’” Bailey v. Allgas, Inc., 284 F.3d 1237, 1243 (11th Cir. 2002)

(quoting Anderson, 477 U.S. at 249), abrogated in part on other grounds

by White Sands Grp., L.L.C. v. PRS II, LLC, 32 So. 3d 5, 14 (Ala. 2009).

“In applying this standard, the court must view all evidence in the

light most favorable to the non-moving party and draw all

reasonable inferences in the non-movant’s favor.” Snell, 102 F.4th

at 1214.

1. We assume without deciding that the Laurie

factors govern our analysis

We have never addressed, in a published decision, how to

decide whether an individual was on an elected official’s “personal

staff” under Title VII. But in Laurie v. Alabama Court of Criminal

Appeals, the United States District Court for the Middle District of

Alabama considered six factors to evaluate whether the plaintiff

was on the defendant’s personal staff:

(1) Whether the elected official has plenary powers of

appointment and removal, (2) whether the person in

the position at issue is personally accountable to only

that elected official, (3) whether the person in the

position at issue represents the elected official in the

eyes of the public, (4) whether the elected official

exercises a considerable amount of control over the

position, (5) the level of the position within the

organization’s chain of command, and (6) the actual

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intimacy of the working relationship between the

elected official and the person filling the position.

88 F. Supp. 2d at 1338 (alteration adopted) (quotation omitted).

We affirmed the district court on this issue “on the basis of the

district court’s well-reasoned opinion.” 256 F.3d at 1269.

Generally, an affirmance without opinion “does not

necessarily adopt the reasoning of the district court; it merely holds

that the judgment is not erroneous.” In re Gen. Coffee Corp., 828

F.2d 699, 703 (11th Cir. 1987); see United States v. Cerceda, 172 F.3d

806, 812 n.6 (11th Cir. 1999) (en banc). When we adopt the

reasoning of a district court on an issue, we do so specifically and

explicitly. See, e.g., Bodine v. Fed. Kemper Life Assurance Co., 912 F.2d

1373, 1376–77 (11th Cir. 1990) (“We agree with the district court’s

conclusion and adopt the following portion of its reasoning: . . . .”);

Wiggins v. Warrior River Coal Co., 696 F.2d 1356, 1359 (11th Cir.

1983) (“In so holding, we adopt the following reasoning of the

district court judge: . . . .”).

In Laurie, we split the baby. We did not merely affirm

without opinion; we affirmed “on the basis of the district court’s

well-reasoned opinion.” 256 F.3d at 1269. But this line is also not

the specific, explicit adoption of the district court’s reasoning that

we typically employ. Thus, we question whether the Laurie district

court’s six-factor test binds us when deciding the applicability of the

personal-staff exemption.

But we leave that question for another day. Below, the

parties litigated the personal-staff exemption using Laurie’s six-

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factor test, and the district court applied Laurie’s six-factor test

when it granted summary judgment to the DA’s Office. Neither

party appeals the district court’s use of that test. Indeed, both

parties continue to litigate the personal-staff exemption using the

Laurie six-factor test in their briefing before us. Accordingly, we

assume without deciding that Laurie’s six-factor test is the proper

standard to determine whether an individual was on an elected

official’s personal staff under Title VII. See Laurie, 88 F. Supp. 2d at

1338 (listing the six factors).

2. There is no genuine dispute of material fact

that Younge was on Howard’s personal staff

We now turn to whether Younge was on Howard’s personal

staff. As discussed, we will apply Laurie’s six-factor test to answer

this question. Again, those six factors are:

(1) Whether the elected official has plenary powers of

appointment and removal, (2) whether the person in

the position at issue is personally accountable to only

that elected official, (3) whether the person in the

position at issue represents the elected official in the

eyes of the public, (4) whether the elected official

exercises a considerable amount of control over the

position, (5) the level of the position within the

organization's chain of command, and (6) the actual

intimacy of the working relationship between the

elected official and the person filling the position.

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Id. (alteration adopted) (quotation omitted). Courts construe the

personal-staff exemption “narrowly.” Teneyuca v. Bexar Cnty., 767

F.2d 148, 152 (5th Cir. 1985). Younge argues that she has

demonstrated a genuine dispute of material fact concerning factors

(1), (3), and (6); thus, summary judgment for the DA’s Office is

inappropriate. Younge concedes that factors (2), (4), and (5) weigh

in favor of applying the personal-staff exemption. Because our

review is de novo, we take each of the factors in turn.

a. The first factor, plenary powers of

appointment and removal, is neutral

The district court found that this factor was neutral because

Howard had plenary power to remove Younge but not to appoint

her. Younge argues on appeal that this factor “weighs against

applying the Exemption” because Howard “did not have ‘plenary’

powers of appointment.” Younge’s argument fails.

We have explained that the “Georgia statutory code

expressly empowers the District Attorney to hire and discharge

personnel and to ‘define the duties and fix the title of any attorney

or other employee of the district attorney’s office.’” Peppers v. Cobb

Cnty., 835 F.3d 1289, 1299 (11th Cir. 2016) (quoting O.C.G.A. § 15-

18-20(a)). Specifically, under Georgia law,

[t]he district attorney in each judicial circuit may

employ such additional assistant district attorneys,

deputy district attorneys, or other attorneys,

investigators, paraprofessionals, clerical assistants,

victim and witness assistance personnel, and other

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employees or independent contractors as may be

provided for by local law or as may be authorized by

the governing authority of the county or counties

comprising the judicial circuit.

O.C.G.A. § 15-18-20(a). Moreover, Georgia law empowers “[t]he

district attorney [to] define the duties and fix the title of any

attorney or other employee of the district attorney’s office.” Id.

Finally, Georgia law empowers district attorneys to fire personnel,

although compensation is determined by the relevant counties:

Personnel employed by the district attorney pursuant

to this Code section shall serve at the pleasure of the

district attorney and shall be compensated by the

county or counties comprising the judicial circuit, the

manner and amount of compensation to be paid to be

fixed either by local Act or by the district attorney

with the approval of the county or counties

comprising the judicial circuit.

Id. § 15-18-20(b).

This statutory framework demonstrates that Howard had

plenary power to terminate Younge. See, e.g., E.E.O.C. v. Reno, 758

F.2d 581, 584–85 (11th Cir. 1985) (holding that Florida assistant

state attorneys were exempted “personal staff” of the state attorney

under the Age Discrimination in Employment Act’s personal-staff

exemption, in relevant part, because “the assistant state attorneys

serve at the pleasure of the appointing state attorney”). Howard

could also hire candidates, but his hiring power was circumscribed

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20 Opinion of the Court 23-11418

by “local law or as . . . authorized by the governing authority of the

county or counties comprising the judicial circuit.” O.C.G.A. § 15-

18-20(a). Indeed, Younge’s offer letter explained that her offer was

“contingent upon the approval of the Fulton County Personnel

Department and Finance Department.” Younge testified that

Howard initially hired her to a director position but had to change

her title to “deputy chief of staff . . . so that [the DA’s Office] could

get the salary that [Younge] had requested.” Thus, Howard had

plenary power to terminate Younge but more limited power to

appoint her. Accordingly, we agree with the district court that,

when viewing this evidence in the light most favorable to Younge,

this factor is neutral.

In opposition to this conclusion, Younge argues that “the

factor is not phrased as ‘whether the elected official has plenary

powers of appointment or removal,’ such that plenary power in

either area qualifies. It is phrased as ‘plenary powers of

appointment and removal.’” (emphasis in original) (quoting

Teneyuca, 767 F.2d at 151). Thus, according to Younge, this factor

weighs against applying the personal-staff exemption because

Howard did not have both plenary powers. But “[t]he language of

an opinion is not always to be parsed as though we were dealing

with language of a statute.” Nat’l Pork Producers Council v. Ross, 598

U.S. 356, 373 (2023) (quoting Reiter v. Sonotone Corp., 442 U.S. 330,

341 (1979)); see also Kanter v. Barr, 919 F.3d 437, 454 (7th Cir. 2019)

(Barrett, J., dissenting) (“[J]udicial opinions are not statutes, and we

don’t dissect them word-by-word as if they were.”). The Laurie

factors are judicially created; they are not in the governing statute.

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See 42 U.S.C. § 2000e(f). And the Fifth Circuit has observed that

whether an individual falls within the personal-staff exemption is a

“highly factual” inquiry, and the six identified factors are “not

intended to be exhaustive.” Teneyuca, 767 F.2d at 152. Thus, we

decline to disregard Howard’s plenary power to terminate Younge

simply because his power to appoint was more limited.

Accordingly, the district court properly held that this factor was

neutral.

b. The second factor, sole accountability to the

elected official, weighs in favor of applying

the exemption

Younge concedes that this factor weighs in favor of applying

the personal-staff exemption. The record shows that Younge was

personally accountable only to Howard. Younge’s offer letter

explains that she “will be assigned to the Policy Division under the

supervision of the District Attorney.” Younge testified that

Howard was her only supervisor. Howard testified that he was

Younge’s immediate supervisor. Younge also testified that she met

with Howard every day, she handled anything Howard needed

done, she discussed the progress of her work with Howard every

day, she had meetings with Howard all the time, and she did not

need to make appointments to see Howard because she was

“essential” and Howard’s “go-to person.” Howard also testified

that he supervised members of his staff like Younge “personally and

directly.” Howard testified that “Ms. Younge had complete access

to [his] office, and so several times a day she would walk into

[Howard’s] office and usually a conversation early in the morning

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22 Opinion of the Court 23-11418

was, so [they] would talk about the activities for that day.”

Accordingly, Younge was personally accountable solely to

Howard, so this factor weighs in favor of applying the personal-

staff exemption to Younge.

c. The third factor, representation of the

elected official to the public, weighs in favor

of applying the exemption

The district court concluded that Younge represented

Howard to the public. On appeal, Younge argues that Howard

represented himself to the public and removed Younge’s public-

facing duties before firing her. We find this factor also favors the

DA’s Office.

When considering this factor, courts generally look to the

public-facing nature and responsibilities (or lack thereof) of the

plaintiff’s job. See Gunaca v. Texas, 65 F.3d 467, 471 (5th Cir. 1995);

Montgomery v. Brookshire, 34 F.3d 291, 295–96 (5th Cir. 1994);

Ramirez v. San Mateo Cnty. Dist. Att’y’s Off., 639 F.2d 509, 510–13

(9th Cir. 1981); Laurie, 88 F. Supp. 2d at 1348. Younge herself

testified that she was “in contact with a lot of persons in the

community on behalf of the DA’s office.” She stated that “[a]ny

dignitaries or anybody—any visitors that came to the office and had

meetings with the DA, [Younge] was in.”

This testimony mirrored that of Howard. He testified that

Younge, as “the third highest official in our office,” would speak for

him. Howard also averred that because of Younge’s “job duties

and her interaction with [Fulton County] constituents, such as the

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23-11418 Opinion of the Court 23

public, community leaders, and dignitaries, [Younge] represented

the DA in the community more than any other member of

[Howard’s] personal staff.” Thus, the record shows Younge

represented Howard to the public, just like other DA employees

that courts, including us, have considered personal staff. See, e.g.,

Shahar v. Bowers, 114 F.3d 1097, 1104 n.15 (11th Cir. 1997) (en banc)

(discussing, in the Title VII personal-staff-exemption context,

“lawyers who serve at the pleasure of their policy-making chief”

and their responsibilities “acting and speaking before others on

behalf of the chief”); Gunaca, 65 F.3d at 471 (discussing

investigators’ job functions, “which necessarily involve[]

interaction with the public,” in holding that “investigators are . . .

representatives of the district attorney” under the Age

Discrimination in Employment Act’s identical personal-staff

exemption); Ramirez, 639 F.2d at 513 (holding that a deputy district

attorney is “personal staff” of the district attorney under Title VII’s

personal-staff exemption).

Younge resists this conclusion by arguing that Howard

represented himself to the public: “[w]henever Younge met with

members of the public, Howard was also present,” and “Younge

did not run any of these meetings.” Thus, according to Younge,

“the inference that most favors the non-moving party” is that

“because Howard was always present in meetings with the

public[,] members of the public perceived Howard himself (not

Younge) as representing him.”

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24 Opinion of the Court 23-11418

Younge’s argument fails. “In passing upon a motion for

summary judgment, a finding of fact which may be inferred but not

demanded by circumstantial evidence has no probative value

against positive and uncontradicted evidence that no such fact

exists.” Bald Mountain Park, Ltd. v. Oliver, 863 F.2d 1560, 1564 (11th

Cir. 1989) (quotation omitted). Younge cites nothing to support

the inference that she asks us to draw. Just because Howard was

present in meetings does not mean that Younge did not also speak

for Howard, especially when Younge was the third-ranking

member of the DA’s Office as Deputy Chief of Staff and Director

of Policy and Programs. Indeed, the record demonstrates, largely

through Younge’s own testimony, that Younge often acted and

spoke on Howard’s behalf to the public. For example, Younge

stated she had “so many” projects that she “was actually

responsible for,” which required her to be “in contact with a lot of

persons in the community on behalf of the DA’s office.” Howard

corroborated Younge’s testimony. Given that evidence, Younge’s

strained inference cannot defeat summary judgment in favor of the

DA’s Office. See Bald Mountain Park, Ltd., 863 F.2d at 1564. 9

9 Younge also argues that this factor weighs against applying the personal-staff

exemption to her because Howard effectively demoted Younge by removing

her public-facing duties before terminating her. Younge advances a similar

argument concerning the intimacy of her working relationship with Howard.

We deal with these arguments together below.

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d. The fourth factor, the elected official’s

control over the position, weighs in favor of

applying the exemption

Younge concedes that this factor weighs in favor of applying

the personal-staff exemption. The record supports Younge’s

concession: Howard set the agenda for the initiatives and programs

that Younge worked on. Howard remained “very involved” in

Younge’s work; Younge testified Howard was “[a]bsolutely” a

“micro manager.” Howard averred that he “was very involved

with [Younge’s] work because [he] knew that [the] voters would

judge [him] based on the job [Younge] did implementing [the DA’s

Office’s] policies and projects.” Younge and Howard testified that

they talked about Younge’s work every day. Accordingly, Howard

exercised a great deal of control over Younge’s work, so this factor

weighs in favor of applying the personal-staff exemption.

e. The fifth factor, the position in the chain of

command, weighs in favor of applying the

exemption

Younge concedes that this factor weighs in favor of applying

the personal-staff exemption. We agree. Younge was third in the

chain of command in the DA’s Office. Younge testified that for

“any and every project that had to do with the [Fulton] DA’s

office,” she “was in that meeting.” Younge further testified that

“the schedule that . . . Howard had, was [her] schedule. [She] . . .

was on almost every meeting . . . that he had.” Younge also

testified that she was “[p]retty much” involved “with everything

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26 Opinion of the Court 23-11418

[the DA’s] office did.” After all, Younge was Howard’s “go-to

person for almost everything.” Howard similarly testified that

Younge was a “key member” and “high ranking part” of his staff.

Accordingly, Younge had a high place in the DA’s Office’s chain of

command, so this factor weighs in favor of applying the personal-

staff exemption to Younge.

f. The sixth factor, the intimacy of the working

relationship, weighs in favor of applying the

exemption

The district court concluded that Younge and Howard had

a close working relationship. On appeal, Younge argues that

Howard ended their intimate working relationship before

terminating Younge, which constituted a de facto demotion out of

Howard’s personal staff. The DA’s Office argues that Younge’s

argument “is circular logic that would render the personal staff

exception meaningless.”

Younge’s own testimony demonstrates that she had a close

working relationship with Howard for most of her employment.

When asked how often she spoke to Howard about the programs

she oversaw, Younge testified, “[a]ll day every day.” Howard even

sent Younge messages on the weekends. Although Younge later

claimed that this testimony was “obviously hyperbole,” she

averred that she and Howard “worked closely together, and

[Howard] demanded constant availability around the clock.”

Howard’s schedule was Younge’s schedule. Younge was “literally

[Howard’s] go-to person for almost everything.” If Howard

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“needed something done[,] [Younge] would handle it.” Younge

was “probably one of the few on staff that was just able to just walk

into [Howard’s] office at any time,” whereas “most folks would

have to schedule an appointment or . . . request to see him through

his executive assistant.” Younge “had kind of an open-door access”

to Howard.

Howard corroborated Younge’s testimony about the pair’s

working relationship. Howard testified that “somebody like

[Younge] wouldn’t even have to knock” to enter Howard’s office.

Howard testified that Younge was a “high ranking part” of his staff

in whom Howard “entrusted a great deal of confidence.” Younge

and Howard spoke about work “several times” per day. Howard

also averred that he “was very involved with [Younge’s] work.”

Accordingly, Younge and Howard had an intimate working

relationship; thus, this factor weighs in favor of applying the

personal-staff exemption to Younge.

In opposition to this conclusion, Younge argues that this

intimate relationship ended when she announced her pregnancy.

Younge contends that Howard’s colder treatment of her, and the

removal of her public-facing duties, constituted a de facto demotion

out of Howard’s personal staff. According to Younge, if she was

personal staff before her pregnancy announcement, she was no

longer personal staff between that announcement and her firing, so

she can still maintain her Title VII suit based on her termination.

In response to Younge’s argument, the DA’s Office points out that

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28 Opinion of the Court 23-11418

Howard never demoted Younge and directs our attention to

Townsend v. Shook, 323 F. App’x 245 (4th Cir. 2009).

In Townsend, 10 the plaintiff was Chief Deputy Sheriff and

sued the Sheriff, an elected official, for violating Title VII. 323 F.

App’x at 247–48. The district court granted summary judgment to

the Sheriff on the plaintiff’s Title VII claims after finding that the

plaintiff was a member of the Sheriff’s personal staff. Id. at 248. On

appeal, the plaintiff argued, in relevant part, that “after several

months in her position as Chief Deputy Sheriff, she was Chief

Deputy Sheriff on paper only and that [the] Sheriff . . . relied on her

more as a friend with whom he would confide personal feelings,

rather than professionally, based on their respective positions.” Id.

at 250. The Fourth Circuit rejected that argument, reasoning that

“such an argument, if accepted, would eliminate the exclusion to

any member of any elected official’s personal staff inasmuch as a

loss of trust and intimacy would be the forerunner of most

terminations.” Id. (quotation omitted).

We agree with the DA’s Office that the same reasoning

forecloses Younge’s argument. Howard never demoted Younge.

After she announced her pregnancy, she remained in “the same job

position, in the same department, and at the same desk.” Pierri v.

Medline Indus., Inc., 970 F.3d 803, 808 (7th Cir. 2020). Instead,

10 Townsend, as an unpublished opinion from a sister circuit, does not bind us.

Nevertheless, the district court relied on Townsend, and the DA’s Office has

cited the case to us. As we will explain, we find the Fourth Circuit’s reasoning

persuasive.

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23-11418 Opinion of the Court 29

Howard stopped meeting with Younge, treated her coldly, and

started meeting with Younge’s teams without her.11 Younge

experienced behavior that precedes most terminations. See

Townsend, 323 F. App’x at 250. Like the Fourth Circuit, we decline

to elevate that behavior to an actionable demotion, lest we

effectively “eliminate” the personal-staff exemption from Title VII.

Id. (quotation omitted).

* * *

In sum, five of the six Laurie factors weigh in favor of finding

that Younge was on Howard’s personal staff. The factor

concerning the elected official’s hiring and firing power is neutral.

In weighing these factors, there is no genuine dispute of material

fact that Younge, as Howard’s Deputy Chief of Staff and Director

of Policy and Programs, was on Howard’s personal staff.12

11 These facts also materially distinguish Cromer v. Brown, 88 F.3d 1315 (4th Cir.

1996), a case Younge relies on. In Cromer, the plaintiff—a police officer—was

demoted from captain to lieutenant. 88 F.3d at 1323–24. As captain, the

plaintiff was personally accountable to the sheriff (an elected official), met

weekly with the sheriff, had a leading role in developing the sheriff’s

department policies, and dealt with the public on behalf of the sheriff. Id. at

1324. After his demotion, the plaintiff no longer helped develop department

policy, was no longer supervised by or directly accountable to the sheriff, and

rarely saw the sheriff. Id. at 1323–24. Younge did not face such drastic,

tangible changes in her responsibilities; Howard never demoted Younge, he

simply treated her more coldly before firing her.

12 This conclusion comports with our precedent. In Shahar, we observed that

we, in our Title VII . . . jurisprudence, [have] held that assistant

state attorneys and the like—lawyers who serve at the pleasure

of their policy-making chief—were not employees protected

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30 Opinion of the Court 23-11418

Accordingly, Younge was not an “employee” under Title VII, and

she cannot invoke Title VII’s protections. See 42 U.S.C. § 2000e(f);

Llampallas, 163 F.3d at 1242. Thus, the district court did not err by

granting summary judgment to the DA’s Office.

III. Conclusion

For the foregoing reasons, we affirm the district court’s

grant of summary judgment to the DA’s Office.

AFFIRMED.

by the statutes, but were members of the personal staff of the

chief lawyer: the position is one of policy-making level,

involving one who necessarily advises, and acts upon, the

exercise of constitutional and legal powers of the chief’s office.

114 F.3d at 1104 n.15.