Arrington v. Cobb County

United States Court of Appeals,

Eleventh Circuit.

No. 96-9114.

Nancy ARRINGTON, Plaintiff-Appellant,

v.

COBB COUNTY, Robert Hightower, in His Official Capacity as Director of Cobb County's

Public Safety Commission, Nathan Wilson, in His Official Capacity as Fire Chief of Cobb County's

Department of Fire and Emergency Service, Defendants-Appellees.

April 24, 1998.

As Amended May 28, 1998

Appeal from the United States District Court for the Northern District of Georgia. (No. 1:95-CV-

351-WCO), William C. O’Kelley, Judge.

Before TJOFLAT, BIRCH and MARCUS*, Circuit Judges.

BIRCH, Circuit Judge:

In this appeal, we determine whether material questions of fact exist with regard to

plaintiff-appellant Nancy Arrington's gender discrimination claims against defendant-appellees Cobb

County, Robert Hightower, and Nathan Wilson. The district court granted summary judgment in

favor of appellees after finding that Arrington had failed to show that she had been discriminated

against on the basis of her gender. For the reasons that follow, we REVERSE.

I. BACKGROUND

From 1984 to 1994, Arrington held the job of Assistant Fire Chief for the Cobb County Fire

Department. In 1994, however, appellees eliminated the Assistant Fire Chief position and demoted

Arrington to Lieutenant. This case stems from appellees' decision to demote Arrington rather than

*

Honorable Stanley Marcus, U.S. District Judge of the Southern District of Florida, sitting by

designation as a member of this panel when this appeal was argued and taken under submission.

On November 24, 1997, he took the oath of office as a United States Circuit Judge of the

Eleventh Circuit.

to promote her to Fire Chief or transfer her to Deputy Chief. Because this appeal is from the district

court's grant of summary judgement, we view the facts in the light most favorable to Arrington. See

Southpace Properties, Inc. v. Acquisition Group, 5 F.3d 500, 504 (11th Cir.1993).

Prior to her demotion in 1994, Arrington served for over twenty years in a variety of roles

within the Cobb County Fire Department. Although County rules during the 1970's prohibited

women from becoming firefighters, Arrington joined the Department in 1971 as a secretary, later

receiving promotions to Fire Prevention Officer (1978-79) and Fire Lieutenant in charge of Fire

Prevention (1979-84). When Cobb County lifted its prohibition on female firefighters in 1980,

Arrington became a certified firefighter but never took an active firefighting position.

In 1984, Arrington won promotion to the position of Assistant Chief for Administration after

submitting to a competitive examination.1 In choosing Arrington over three other candidates for the

Assistant Chief position, Fire Chief W.D. Hilton relied on Arrington's "performance on the

examination, her excellent job performance ... and her knowledge of fire department operations and

administration." R2-26 Exh. A ¶ 10 at 3 (Hilton Aff.).2 Hilton promoted Arrington to Assistant

Chief with the concurrence of the County Manager and the Civil Service Board.

In her position as Assistant Chief for Administration, Arrington had a number of official

responsibilities. As the chief administrator for the Department, Arrington supervised and assessed

all six of the Department's Colonels, who regularly reported to Arrington regarding their respective

1

During Arrington's decade in this position, her title took various forms, including Assistant

Director, Administration. For the sake of clarity and convenience, we refer to her position

throughout as "Assistant Chief for Administration."

2

Appellees state throughout their brief that Arrington did not compete for her position,

without ever citing us to Chief Hilton's sworn statement describing her promotion and refuting

appellees' assertion. Appellees would have been better served, on this and other factual points,

to have brought all of the relevant evidence in the record to our attention.

"Training," "Extinguishment," "Fire Marshal," "Budget," "Research and Development," and

"Building and Fleet Maintenance" responsibilities. In addition, Arrington assisted Chief Hilton in

preparing and presenting the Department's budgets, wrote technical reports, met with the County

Manager and County Board of Commissioners, and spoke to other professional and community

groups. Further, Arrington managed a variety of the Department's special projects. In 1985, for

example, Arrington oversaw the development of an Emergency Medical Services (EMS) program

that soon "was reputed to be the best in the State and one of the best in the Southeast." Id. ¶ 12 at

4. Similarly, Arrington lead the Department's successful 1988 effort to reduce its insurance

classification, assisting the Department's cause "greatly" with her "knowledge of all aspects of

firefighting, including administrative and operations knowledge." Id. ¶ 15 at 5. At the same time,

Arrington was responsible for "a territory equal to [that of] other management staff members to be

on call for major fires and emergencies." Id. ¶ 21 at 7.

Beyond her official portfolio, Arrington also assumed a broad range of additional

responsibilities during her tenure as Assistant Chief. Although the County technically had an

Assistant Chief for Operations, H.K. Nixon, a management study of the Department found in 1992

that Arrington was functioning as Chief Hilton's second-in-command for operations as well as

administration:

The Assistant Director, Administration [Arrington] is performing outside the boundaries of

the job description as it was originally designed. The current incumbent is performing

administrative and operational decisions....

....

The job description is written for management of the "Administrative Services Division."

However, the current incumbent is serving as second in command and assisting in

supervising and controlling all activities of the Fire Department (i.e., supervising/managing

line and staff colonels). These are responsibilities of the Assistant Director, Operations' job

description.

R2-26 Exh. C at 2, 6.3 In response to this report, Chief Hilton wrote to the County Manager not only

that he agreed that Arrington had assumed an operations-related role beyond her title, but also that

he intended to expand her official job description to encompass the duties of the Assistant Chief for

Operations (once Nixon retired). See R2-26 Exh. D. In fact, Chief Hilton has explained that he

consciously made Arrington the de facto head of the Department upon his becoming President of

the International Association of Fire Chiefs in 1990. See R2-26 Exh. A ¶ 17 at 6 (Hilton Aff.) ("In

my absence Assistant Chief Arrington performed the duties of Fire Chief and ran the department for

me.").4

Moreover, all of the evidence before the court indicates that Arrington excelled as Assistant

Chief. Although appellees insist throughout their brief that Arrington had no right, as someone who

did not rise through the ranks, to hold a high post in the Department, they have not offered any

evidence that Arrington ever performed her official or unofficial duties as Assistant Chief in

anything less than an exemplary manner. Indeed, appellees have made no attempt to refute Chief

Hilton's assessment that "Nancy Arrington, throughout her tenure with the County Fire

Department[,] has earned the respect of her peers, her department, and fire officials throughout the

State and Country." Id. ¶ 19 at 6.

In 1993, Chief Hilton announced his retirement (effective in 1994) as the County moved

toward a restructuring of its public safety agencies. Central to this reorganization effort, the County

planned to bring its separate Police, Fire, and Corrections Departments within one, consolidated

3

This management audit was conducted by the County's Personnel Department, rather than by

officials from within the Fire Department.

4

Appellees apparently do not dispute that Arrington exercised a broad range of duties as

Assistant Chief. Appellees advance no argument or evidence undercutting the County's report

on Arrington's operational activities, nor do they offer any argument or evidence contradicting

Chief Hilton's assessment of Arrington's role within the Department.

Public Safety Department, thereby reducing administrative and other inefficiencies. Leading the

County's reorganization effort, the newly-installed Public Safety Director, Robert Hightower, had

responsibility for selecting the County's new Fire Chief. After conducting a series of interviews,

Hightower chose Nathan Wilson as the new Chief, passing over Assistant Chief Arrington and eight

other candidates for the position.5 As an experienced firefighter, Wilson had risen through the ranks

of the Department, from firefighter in 1965 to Colonel at the time of his selection as Fire Chief. In

explaining and defending Wilson's promotion over Arrington in the course of this suit, Hightower

has cited Arrington's lack of "operational experience" as the key element that rendered her

unqualified for the position.

Once Wilson assumed his new position as Chief, he joined Hightower in determining how

to integrate the County's Fire Department into the new Public Safety Department. Of particular

relevance to this case, Wilson and Hightower decided to replace the two Assistant Fire Chief

positions (Administration and Operations) with a new, consolidated second-in-command position

of "Deputy Chief."6 Upon the Board of Commissioners' acceptance of Wilson and Hightower's

restructuring plan, Wilson chose David Hayes to serve as the new Deputy Chief, demoting Arrington

5

Peter Fanton and Donna Carter also interviewed each of the candidates for Fire Chief.

Hightower, however, had the responsibility for actually selecting the new Fire Chief, with the

concurrence of the Board of Commissioners.

6

Hightower and Wilson's motives for this element of their reorganization plan are in dispute

and are addressed below. Hightower and Wilson contend that the new Deputy Chief position

was designed primarily as an "Operations" job, with most of the administrative responsibilities

of the former Assistant Chief for Administration shifting to a centralized administrative staff for

the entire Public Safety Department. Arrington, however, contends that the Deputy and

Assistant Chief jobs are essentially the same, and that appellees used the ongoing restructuring

effort to replace her with Hayes, discriminating against her on the basis of her gender.

to Lieutenant.7 Like Wilson, Hayes had risen through the ranks from firefighter to Colonel before

his most recent promotion to Deputy Chief, and Wilson has explained and defended his passing over

of Arrington as a reflection of her lack of "operational experience" in fighting fires.8

Following her demotion, Arrington brought suit against the County, Hightower, and Wilson

in the district court. Specifically, Arrington alleged that appellees had discriminated against her on

the basis of her gender in (1) denying her the Fire Chief position, (2) denying her the Deputy Chief

position, and (3) demoting her to Lieutenant, in violation of Title VII of the Civil Rights Act of

1964, 42 U.S.C. § 2000e et seq., and the equal protection clause of the Fourteenth Amendment

(enforced through 42 U.S.C. § 1983). Further, Arrington claimed that the appellees had violated the

Equal Pay Act, 29 U.S.C. § 206(d), by (1) paying her alleged "successor" Hayes a higher salary as

Deputy Chief than she had received for her "substantially equal" work as Assistant Chief and (2)

paying her less as a Lieutenant than her male Lieutenant peers.

After appellees moved for summary judgment, the district court assigned the case to a

magistrate judge for evaluation. In a Report & Recommendation ("R & R"), the magistrate judge

suggested that the district court: (1) grant summary judgment in favor of appellees on Arrington's

Title VII "Fire Chief" claim, because Arrington had failed to file a timely EEOC charge regarding

the appellees' failure to promote her to that position; (2) grant summary judgment in favor of

appellees on Arrington's § 1983 Fire Chief equal protection claim, based on the same untimeliness

7

Hightower and Fenton also participated in interviewing the candidates for Deputy Chief, but

it was Wilson who actually selected Hayes for the job. The County's civil service law required

Arrington's demotion to her last previous rank (Lieutenant) upon the County's elimination of her

Assistant Chief position.

8

Furthermore, Cobb County, Hightower, and Wilson have insisted before this court that

Arrington was not even qualified for her former Assistant Chief position, though they offer no

evidence to support this assertion.

rationale; (3) proceed to trial on Arrington's Title VII and § 1983 claims regarding the Deputy Chief

position, on the ground that material issues of fact existed with regard to Arrington's qualifications

for that position;9 (4) grant summary judgment on behalf of appellees on Arrington's claims of

discriminatory demotion to Lieutenant, on the ground that the County's civil service law required

her demotion to her previous rank (Lieutenant) upon the elimination of her job as Assistant Chief;

(5) deny summary judgment on Arrington's Equal Pay Act claim of discrepancy between Deputy

Chief Hayes's salary and her former salary as Assistant Chief, because of disputed material facts;

and (6) grant summary judgment on behalf of appellees on Arrington's Equal Pay Act claim

regarding alleged discrepancies between her current pay and that of other Lieutenants, because any

inequalities regarding Arrington's current pay were required by the County's even-handed civil

service rules.

Following the magistrate judge's initial R & R, Arrington objected to the district court that

the timing of her EEOC complaint was irrelevant to her § 1983 claim for violations of her

constitutional right of equal protection. Subsequently, the magistrate judge submitted a

Supplemental R & R ("SR & R") addressing Arrington's concerns. In this SR & R, the magistrate

judge agreed with Arrington that her § 1983 Fire Chief claim could not be dismissed on the basis

of her untimely EEOC charge. Upon reaching the merits of Arrington's § 1983 Fire Chief claim,

however, the magistrate judge found, sua sponte, that there was no evidence that the County had any

"policy" or "custom" of gender discrimination that might have caused Arrington to be denied the

Fire Chief position. Relying on Monell v. Dep't of Soc. Serv., 436 U.S. 658, 98 S.Ct. 2018, 56

L.Ed.2d 611 (1978), and its progeny, the magistrate judge therefore again recommended that the

9

Unlike Arrington's Title VII Fire Chief claims, her Title VII Deputy Chief claims have not

suffered from any timeliness problems.

district court grant summary judgment against Arrington on her Fire Chief claims against the County

and Hightower.10

In response to the magistrate judge's SR & R, Arrington agreed that Monell required the

district court to dismiss her § 1983 Fire Chief claim against the County but objected to the

magistrate judge's unexplained additional recommendation of dismissal against Hightower, who

Arrington insisted she was suing in his personal capacity as well as in his official capacity.

Arrington did not object to the magistrate judge's recommendation for summary judgment against

her on her Title VII Fire Chief claims, her § 1983 Fire Chief claim against the County, her

discriminatory demotion claims, or her Equal Pay Act claim concerning alleged inequalities between

herself and her Lieutenant peers.

Despite the magistrate judge's recommendation that the district court proceed to trial on

several of Arrington's allegations, the district court granted summary judgment for appellees on all

of Arrington's claims. On Arrington's § 1983 Fire Chief claim against Hightower, the district court

held that its judgment against Arrington on her Title VII Fire Chief claims (because of her untimely

EEOC charge) required it to grant summary judgment also against Arrington on all of her § 1983

Fire Chief claims, lest Arrington use § 1983 to circumvent the administrative requirements for Title

VII actions. On Arrington's Deputy Chief claims, the district court ruled that Arrington had

established a prima facie case of sex discrimination under McDonnell Douglas Corp. v. Green, 411

U.S. 792, 93 S. Ct. 1817, 36 L.Ed.2d 668 (1973). Nonetheless, the district court granted summary

judgment for appellees because it found that Arrington had produced no evidence that appellees'

proffered legitimate, nondiscriminatory reason for their actions (i.e., Arrington's lack of "operational

10

We note that no Monell issue has arisen with regard to Arrington's § 1983 Deputy Chief

claims. On remand, the district court may wish to consider whether to apply Monell to

Arrington's § 1983 Deputy Chief claims.

experience") masked an illegal motive. Finally, on Arrington's remaining Equal Pay Act claim, the

court granted summary judgment for appellees because it found that the positions of "Deputy Chief"

and "Assistant Chief for Administration" were not substantially equal.

II. DISCUSSION

Summary judgment is only appropriate where there are no genuine issues of material fact

and the moving party is entitled to judgment as a matter of law. See Fed.R.Civ.P. 56(c). In

reviewing the district court's grant of summary judgment, we review both its factual findings and

its legal reasoning de novo. See, e.g., Combs v. Plantation Patterns, 106 F.3d 1519, 1526 (11th

Cir.1997), cert. denied sub nom., Combs v. Meadowcraft, --- U.S., ----, 118 S.Ct. 685, --- L.Ed.2d

---- (1998).11 We view the evidence in the light most favorable to the non-moving party, using the

same legal standards appropriate for the district court. See id. In this appeal, Arrington contests the

district court's grant of summary judgment for appellees on (1) her § 1983 Fire Chief claim against

Hightower, (2) her Title VII and § 1983 Deputy Chief claims against all three appellees, and (3) her

Equal Pay Act claim against all three appellees regarding salary disparity between the Deputy and

Assistant Chief positions. We address each of Arrington's bases for appeal in turn.

A. THE FIRE CHIEF POSITION

The district court granted summary judgment on Arrington's § 1983 claims for significantly

different reasons from those recommended by the magistrate judge in its SR & R. Instead of relying

on a Monell finding that the County did not have a "policy" or "custom" of discrimination, the

district court based its ruling on the principle that a plaintiff may not use § 1983 to circumvent the

11

Appellees' assertion that we should subject the factual findings of the district court only to a

clearly erroneous standard of review finds no support in the precedents of this court. We find

appellees' inability to discuss even the standard of review in a straightforward and forthcoming

manner to be disheartening.

administrative requirements for a Title VII claim. On appeal, Arrington argues that the district court

erred because her § 1983 claim is based on a violation of her constitutional equal protection rights

and not on any statutory violation of Title VII.

To prevail on a claim under § 1983, a plaintiff must demonstrate both (1) that the defendant

deprived her of a right secured under the Constitution or federal law and (2) that such a deprivation

occurred under color of state law. See Willis v. University Health Serv., 993 F.2d 837, 840 (11th

Cir.1993). Of course, an allegation of a Title VII violation cannot provide the sole basis for a § 1983

claim. See Allen v. Denver Pub. Sch. Bd., 928 F.2d 978, 982 (10th Cir.1991) ("[S]ection 1983

cannot be used to assert the violation of rights created only by Title VII."); Hervey v. City of Little

Rock, 787 F.2d 1223, 1233 (8th Cir.1986) (same). As the district court observed, a plaintiff cannot

bootstrap an untimely Title VII claim by bringing a § 1983 action based only on a statutory violation

of Title VII. Cf. Great Am. Fed. Sav. & Loan Assoc. v. Novotny, 442 U.S. 366, 375-78, 99 S.Ct.

2345, 2350-52, 60 L.Ed.2d 957 (1979) (stating that plaintiffs may not bypass the Title VII

administrative process by enforcing their statutory rights under Title VII through § 1985).

Arrington, however, does not rest her § 1983 Fire Chief claim on any alleged violation of Title VII.

Instead, Arrington satisfies the first element of § 1983 by alleging that Hightower violated her

Fourteenth Amendment right of equal protection. See Johnson v. City of Fort Lauderdale, 114 F.3d

1089, 1092 (11th Cir.1997), reh'g en banc denied, 124 F.3d 223 (1997) (holding that Title VII does

not preempt a Fourteenth Amendment cause of action for employment discrimination under § 1983);

Hervey, 787 F.2d at 1233 (holding that a plaintiff whose Title VII claim is time-barred is "limited

to proving that the [defendant] violated her equal protection rights under the fourteenth amendment

in order to recover under § 1983.").12 Thus, we conclude that the district court erred as a matter of

law by granting summary judgment to the appellees on this issue.13 Accordingly, we reverse the

district court's grant of summary judgment on Arrington's § 1983 Fire Chief claim against Hightower

and remand this issue to the district court for further proceedings consistent with this opinion.14

B. THE DEPUTY CHIEF POSITION

Arrington argues that material questions of fact exist with regard to her claims that appellees

discriminated against her on the basis of her gender in denying her the Deputy Chief position. For

Title VII and § 1983 gender discrimination claims, the order and allocation of proof are well

established.15 First, the plaintiff must prove a prima facie case of discrimination by a preponderance

of the evidence. Second, if the plaintiff makes out a prima facie case, the defendant must produce

12

There is no dispute that Hightower acted under the color of state law in denying Arrington

the promotion to Fire Chief, satisfying the second element of § 1983.

13

In their brief for this court, appellees ignore the district court's confusion regarding the

relationship between Title VII and § 1983; appellees strangely declare that the district court

based its decision on the merits of Arrington's § 1983 Fire Chief claim. Appellees' contention

that the district court reached the merits of this issue is, at best, misleading. Because the district

court did not discuss the magistrate judge's decision on the merits of appellants' § 1983 Fire

Chief claims, we decline at this stage to evaluate the merits of Arrington's remaining Fire Chief

claim against Hightower. We note, however, that Arrington has insisted that she seeks to pursue

Hightower in his personal capacity. Given our liberal system of notice pleading, and appellees'

apparent understanding throughout their submissions to the magistrate judge and district court

that Arrington sought to hold Hightower liable in his personal as well as in his official capacity,

we expect that the district court will allow Arrington to amend her complaint as necessary to

reflect the true nature of her claims. Cf. Espanola Way Corp. v. Meyerson, 690 F.2d 827, 829

(11th Cir.1982) (rules of notice pleading apply to complaints in § 1983 actions).

14

We note again that Arrington has conceded that the district court's judgment on her § 1983

Fire Chief claim against the County is justified on the alternative, Monell grounds relied upon by

the magistrate judge. Arrington, therefore, has not appealed the district court's grant of summary

judgment for the County on this claim. On remand, the only remaining claim based on

Arrington's failure to receive promotion to Fire Chief will be her § 1983 claim against

Hightower.

15

This framework would also apply to any evaluation of the merits of Arrington's § 1983 Fire

Chief claim against Hightower, discussed above.

a legitimate, non-discriminatory reason to explain the challenged action. Third, should the

defendant carry this burden, the plaintiff must show by a preponderance of the evidence that the

defendant's proffered explanation was a pretext for discrimination. See Texas Dept. of Community

Affairs v. Burdine, 450 U.S. 248, 252-53, 101 S.Ct. 1089, 1093, 67 L.Ed.2d 207 (1981).

Since Arrington has produced no direct evidence that appellees' harbored an illegal motive

for refusing her the Deputy Chief position, she must rely on the test set out in McDonnell to establish

her prima facie case of discrimination through circumstantial evidence. Under this four-pronged

test, Arrington must show that (1) she is a member of a protected class, (2) she applied and was

qualified for the Deputy Chief position, (3) she was rejected in spite of her qualifications, and (4)

the Deputy Chief position went to an equally or less qualified person who was not a member of a

protected class. See McDonnell, 411 U.S. at 802, 93 S.Ct. at 1824; Batey v. Stone, 24 F.3d 1330,

1334 n. 11 (11th Cir.1994).16 Plainly, Arrington is a member of a protected group (women), did not

receive the position at issue (Deputy Chief), and lost the position at issue to a person who was not

a member of a protected class (the new, male Deputy Chief, Hayes).

Appellees, however, argue that Arrington was not qualified for the Deputy Chief position

because she lacked the "operational experience" necessary for the proper performance of the job.

As part of the County's reorganization of its public safety agencies, the appellees contend, the new

Deputy Chief must perform operational tasks formerly assigned to the Assistant Chief for

Operations, while the administrative duties of the former Assistant Chief for Administration have

been largely reassigned to the Public Safety Department's central administrative office. Thus,

16

Although the McDonnell case concerned only Title VII, its analytical framework for the

establishment of a prima facie case of employment discrimination applies equally to

discrimination claims brought under § 1983. See, e.g, Burns v. Gadsden State Community

College, 908 F.2d 1512, 1518 (11th Cir.1990) (per curiam).

appellees contend both that Arrington cannot prove a prima facie case of discrimination and that

they had a legitimate, nondiscriminatory reason for refusing to interview Arrington for the Deputy

Chief position: her lack of operational experience rendered her unqualified to shoulder the

operational responsibilities the new position demanded.17

If Arrington had not been able to provide the district court with additional evidence of her

qualification for the Deputy Chief position, the district court's grant of summary judgment against

Arrington might well have been appropriate; without more, it would seem reasonable to us that a

Fire Chief might choose to pass over a candidate for Deputy Chief who did not have first-hand

experience fighting fires. Arrington, however, has presented circumstantial evidence and testimony

that could lead a reasonable jury to conclude that the appellees' explanations mask an illegitimate,

discriminatory motive.

Although the appellees maintain that the job of Deputy Chief is a new, "operational"

position, Arrington's evidence appears to demonstrate that Deputy Chief Hayes is in fact performing

the same tasks formerly performed by Arrington as Assistant Chief. Shortly after his promotion,

Hayes filled out a "Position Description Questionnaire" in which he detailed his duties as Deputy

Chief and the time he spent on each:

All sections except Fire Prevention and Arson answer directly to me. As an administrative

staff member I must attend various meetings both outside and inside the department....

[50%]

17

In granting summary judgment for appellees, the district court ruled that Arrington was

sufficiently qualified to establish a prima facie case. Nonetheless, the court ultimately accepted

appellees' asserted nondiscriminatory reason for denying Arrington the Deputy Chief position,

apparently because Arrington was unable to rebut appellees' explanation with direct evidence

that appellees' acted with a discriminatory motive. Given that appellees' asserted reason is the

exact converse of one element of a prima facie McDonnell case of discrimination, we regret that

the district court did not explain further its conclusion that Arrington was "arguably qualified"

but that there was no material question of fact regarding appellees' contention that she was not

qualified.

The Chief or I must approve all purchase requests.... We monitor activities from month to

month to make sure we stay within the budgeted funds and must take corrective actions if

necessary to correct overages.... [8%]

The chief and I are responsible for the total preparation of our $28,000,000 budget. This

includes proposals for new equipment or programs as well as establishing ongoing budget

proposals from existing data as well as known factors that may influence expenditures....

[5%]

I oversee the Emergency Medical Services program of the county.... [20%]

I answer large or unusual fire and rescue calls on an emergency basis. Once on the scene

I assume responsibility for the incident even if I don't take command of the incident. [5%]

I am responsible for the writing of many technical papers, reports and projects for the

department.... [10%].

From time to time I speak to various outside organizations representing the department....

[1%]

I am a member of various committees or organizations including the Cobb County

Emergency Medical Services Council, the Excel Alumni Association, and the Georgia

Firefighters Burn Foundation. [1%]

R2-26 Exh. M. Significantly, Arrington performed all of these activities when she served as

Assistant Chief. Like Deputy Chief Hayes, Arrington supervised and assessed the various section

leaders within the Department, and she prepared and policed the Department's budgets. Like Hayes,

Arrington also oversaw the County's EMS program; in fact, she was responsible for the program's

creation. Moreover, Arrington, like Hayes, was on call to take responsibility for a variety of

emergency situations, and she prepared a variety of technical papers and reports. Finally, like

Hayes, Arrington commonly represented the Department both before the County Commission and

before a variety of public and private groups.18 Again, past and present statements by Arrington's

18

The appellees have offered no evidence of any significant, specific, "operational" task

actually performed by the Deputy Chief that Arrington is not at least arguably qualified to

perform or that she has not already actually performed as de facto head of the County's Fire

Department under Chief Hilton. We also note that it is curious that appellees believed Arrington

to be sufficiently qualified for the Fire Chief position to consider her through two rounds of

former superior, former Chief Hilton, call into question appellees' explanations for their behavior.

In response to the 1992 personnel study of the Department, for example, Hilton reported that:

[Arrington] works jointly with me to provide the total fire and EMS service to our citizens.

Nothing goes out of our building, either to our own people, interdepartment, or to the public,

without her approval. She assigns work to the Colonels and makes decisions daily about

every phase of our service. There has to be a coordination of daily operations and someone

to keep everyone going down the same road and out of the ditches. I depend completely on

her to do this and trust her to make any decision necessary in my absence to carry on. She

is expected to and very often does present new programs or better ways of doing what we

do. This requires research and heavy contact with other fire services organizations.

R2-26 Exh. D at 3. In the same vein, Hilton now states in his affidavit that:

I concur that Nancy Arrington was performing the duties of managing and supervising the

operations side of the Fire Department along with being responsible for the administrative

aspects of the Department. Nancy Arrington was second in command of the entire Cobb

County Fire Department.

R2-26 Exh. A ¶ 22 at 7. Given the striking similarity between the actual responsibilities of current

Deputy Chief Hayes and former Assistant Chief Arrington, we have difficulty finding that

reasonable minds could not differ concerning appellees' claims that Arrington was unqualified even

to be interviewed for the Deputy Chief position.19 Thus, we conclude that a jury might reasonably

infer that Arrington was qualified for the Deputy Chief position, thereby both establishing the final

element of Arrington's prima facie case and significantly undermining the credibility of appellees'

interviews, yet found her to be so lacking in qualification for the Deputy Chief position as to be

unworthy of consideration.

19

Significantly, appellees make no attempt to dispute any of this evidence. Instead, appellees

rely on the bald proposition that it would be absurd for a person without actual line experience

fighting fires to become the second-in-command (let alone the Chief) of a fire department.

Although we recognize that such an argument might ultimately persuade a jury, we must view

the evidence in the light most favorable to the non-moving party, Arrington. From this

perspective, we cannot ignore the substantial evidence from which a jury might reasonably infer

that the appellees' emphasis on operational experience was a pretext for gender discrimination.

asserted nondiscriminatory explanation for their actions.20

The only question remaining, then, is whether Arrington may proceed to trial on evidence

that only undermines the credibility of appellees' asserted reason for not considering her for the

Deputy Chief position, without directly showing that appellees harbored an illegal motive. As this

court has repeatedly held, a Title VII plaintiff may defeat a motion for summary judgment by

undermining the credibility of a defendant's explanation for its actions:

[P]roof that a defendant's articulated reasons are false is not proof of intentional

discrimination; it is merely evidence of intentional discrimination. However, evidence of

intentional discrimination is all a plaintiff needs to defeat a motion for summary judgment.

That evidence must be sufficient to create a genuine factual issue with respect to the

truthfulness of the defendant's proffered explanation.

Howard v. BP Oil Co., 32 F.3d 520, 525 (11th Cir.1994).21 In this case, Arrington has produced

sufficient evidence undermining appellees' explanation for denying her the Deputy Chief position

that a reasonable jury might infer that the appellees intentionally discriminated against Arrington,

in violation of her Title VII and equal protection rights. Both the appellees and the district court,

however, appear to have misread our precedents as to the type of proof required of a plaintiff in a

discrimination case based on circumstantial evidence. In ruling for the appellees, the district court

explained that "Plaintiff has not presented any evidence to suggest that sexual discrimination had

anything to do with her not being appointed to the position of Deputy Chief. Plaintiff's inability to

20

A plaintiff may rely on the same evidence both to establish her prima facie case and to cast

doubt on the defendant's nondiscriminatory explanations. See Carter v. Three Springs

Residential Treatment, 132 F.3d 635 (11th Cir.1998).

21

We understand that there may once have been some confusion regarding our court's

precedents on this issue. See Isenbergh v. Knight-Ridder Newspaper Sales, Inc., 97 F.3d 436

(11th Cir.1996) (criticizing Howard ). Today, however, Howard clearly represents the law in

this circuit, see Combs, 106 F.3d at 1529-35 (collecting cases), as the author of Isenbergh has

subsequently acknowledged, see Evans v. McClain of Ga., Inc., 131 F.3d 957, 964-65 (11th

Cir.1997) (per curiam).

show this is fatal to her effort to avoid a ruling of summary judgment in favor of defendants." R3-36

at 20. Requiring such a direct showing of discriminatory intent from Arrington, though, would not

only contradict our precedents but would also would make it impossible for a plaintiff to prevail on

any discrimination case based solely on circumstantial evidence. See Combs, 106 F.3d at 1536-38.

Thus, we conclude that the district court has erred both in its assessment of the facts and in its

analysis of the law, and we reverse the district court's grant of summary judgment against Arrington

on her Deputy Chief claims.

C. THE EQUAL PAY ACT CLAIM

To establish a prima facie case under the Equal Pay Act, an employee must show that "an

employer pays different wages to employees of opposite sexes "for equal work on jobs the

performance of which requires equal skill, effort, and responsibility, and which are performed under

similar working conditions.' " Corning Glass Works v. Brennan, 417 U.S. 188, 195, 94 S.Ct. 2223,

2228, 41 L.Ed.2d 1 (1974); Waters v. Turner, Wood & Smith Ins. Agency, Inc., 874 F.2d 797, 799

(11th Cir.1989). To establish a prima facie case, a plaintiff need only demonstrate that the jobs at

issue are substantially similar; a plaintiff does not have to show that the skills or qualifications of

the actual male and female employees holding the positions are also substantially equivalent. See

Miranda v. B & B Cash Grocery Store, Inc., 975 F.2d 1518, 1533 (11th Cir.1992) ("[O]nly the skills

and qualifications actually needed to perform the jobs are considered."). Moreover, "[t]he prima

facie case ... focuses solely on the primary duties of each job, not duties that are incidental or

insubstantial," and, although formal job titles or descriptions may be considered, the controlling

factor in the court's assessment of whether two jobs are substantially equal must be actual job

content. See id. Finally, a plaintiff does not have to prove that two jobs are identical but rather must

show that the "skill, effort and responsibility required in the performance of the jobs are

substantially equal." Id. (emphasis added) (internal quotation omitted).22

On appeal, Arrington argues that the district court erred in concluding that no material issue

of fact existed as to whether the Deputy and Assistant Chief positions were substantially equal.

Given our comparative analysis above, we agree with Arrington that a jury might reasonably

conclude that the Deputy and Assistant Chief positions are "substantially equal." While appellees

emphasize Arrington's formal job title, Arrington points to significant evidence indicating that she

exercised a wide range of duties as "second in command" to former Chief Hilton, duties which very

closely track those actually performed by Deputy Chief Hayes.23 At a minimum, Arrington has

established a material question of fact with regard to her Equal Pay Act claim.24 Thus, we reverse

the district court's entry of judgment on this claim and remand it to the district court for further

proceedings.

III. CONCLUSION

The district court has committed a number of factual and legal errors in granting summary

judgment for appellees. Therefore, we REVERSE the district court's grant of summary judgment

to Hightower on Arrington's § 1983 Fire Chief Claim and REMAND that claim to the district court

for further consideration consistent with this opinion. Further, we REVERSE the district court's

22

The Equal Pay Act also clearly applies when a plaintiff alleges an inequality between her

pay and that of her successor. See Gosa v. Bryce Hosp., 780 F.2d 917, 919 (11th Cir.1986) (per

curiam).

23

We regret that appellees have chosen not to discuss the various reports and affidavits upon

which Arrington relies to demonstrate the extent of her actual responsibility as Assistant Chief.

Given such unquestioned evidence, appellees' repeated references to Arrington's formal job title

and job description as Assistant Chief for Administration are unpersuasive.

24

Appellees argue for the first time on appeal that no significant disparity exists between

Hayes' salary as Deputy Chief and Arrington's salary as Assistant Chief. Because this argument

was not fairly before the district court, we decline to address it here.

grants of summary judgment on Arrington's Title VII and § 1983 Deputy Chief claims, as well as

on Arrington's Equal Pay Act claim regarding her Deputy Chief "successor," and REMAND these

claims for further proceedings in the district court.