Petition for Writ of Certiorari — Turlington v. Atlanta Gas Light Co.

Supreme Court, U.8.

PILED

98 211 jut 301998

No. 98-___ OFFICE OF THE CLERK

In The

Supreme Court of the United States

October Term, 1997

¢

BILLY JOE TURLINGTON AND

ELLEN JOCILE TURLINGTON,

Petitioners,

ATLANTA GAS LIGHT COMPANY,

RANDY CURRY, AND ROBERT MILLER,

Respondents.

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On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Eleventh Circuit

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PETITION FOR A WRIT OF CERTIORARI

¢

Davip J. Wor.ey

Counsel of Record

NorMan J. SLAWSKY

JAcoss AND SLawsky, P.A.

1950 Equitable Building

100 Peachtree Street

Atlanta, GA 30303

(404) 522-4280

Counsel for Petitioners

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 342-2831

————

QUESTION PRESENTED

Is an employee who is admittedly denied training

because of his age and thereafter denied a job because of

that lack of training barred from bringing suit under the

ADEA because he failed to file a charge of discrimination

within 180 days of the denial of training, even though he

did file a charge within 180 days of the denial of the job?

PARTIES TO THE PROCEEDINGS

The petitioners in this case, plaintiffs and appellants

below, are Billy Joe and Ellen Jocile Turlington. Respon-

dents in this case, defendants and appellees below, are

Atlanta Gas Light Company, Randy Curry and Robert

Miller.

pe ahd oan

TABLE OF CONTENTS

Page

QUESTION PRESENTED. ..........---seeeeeeeeeees i

PARTIES TO THE PROCEEDINGS ...............-. ii

TABLE OF AUTHORITIES . .. 2.0... cscce cece cneees. iv

€ gil @ B18 6, | enn rer! ee ee 1

JURISDICTION ........---s-s0ee> Sak Wak ae wae ka 1

STATUTORY PROVISIONS. .........--:. eee eeeeees 1

STATEMENT OF THE CASE............-..-2-seeee, 2

REASONS FOR GRANTING THE WRIT ........... 7

I. THE ELEVENTH CIRCUIT’S DECISION IS

DIRECTLY CONTRARY TO THIS COURT'S DECI-

SIONS IN UNITED AIR LINES V. EVANS AND

DELAWARE STATE COLLEGE V. RICKS ......... 7

Il. THE ELEVENTH CIRCUIT'S DECISION IS CON-

TRARY TO THE DECISIONS OF THE FOUR

OTHER CIRCUITS WHICH HAVE EXAMINED

IDENTICAL OR ANALOGOUS CASES......... 10

as Sock cies Recep be ca ties oc 16

TI as ss App. 1

iv

TABLE OF AUTHORITIES

Cases

Bouman v. Block, 940 F.2d 1211 (9th Cir. 1991) ....11, 13

Chardon v. Fernandez, 454 U.S. 6 (1981).............. 14

Del. State College v. Ricks, 449 U.S. 250 (1980).... passim

Johnson v. General Electric, 840 F.2d 132 (ist Cir.

NE si 5s SEEN ee ee 11, 13, 14, 15

Kreager v. Solomon & Flanagan, P.A., 775 F.2d 1541

(lith Cie. 1963)... ost i ie as e)

Lendo v. Garrett Co. Board of Education, 820 F.2d

1965S 440s Cis, WCF icc cs cake svanvnge totes Ohare 10, 11

Lorance v. AT&T Technologies, Inc., 490 U.S. 900

CRUG) 5 a8 ETNIES Vien de wad pees Coeur es 13

Sangster v. United Air Lines, 633 F.2d 864 (9th Cir.

1980), cert. denied, 451 U.S. 971 (1981).......... ai, 22

Stoller v. Marsh, 682 F.2d 971 (D.C. Cir. 1982), cert.

denied, 460 US. 1037 129050 « x iccineccsecawke ets 11, 12

United Air Lines, Inc. v. Evans, 431 U.S. 553 (1977)

Ja ieee V RESERV RA ba ORE ee ee 5, 6, 7, 8, 10, 12

STATUTORY PROVISIONS

26 USS. BO U2ORE) cc iies rehash eee 1

29: TIS. S GE Bio 55k ee rei eRe 1, 4

PETITION FOR A WRIT OF CERTIORARI

Billy Joe and Ellen Jocile Turlington respectfully peti-

tion for a writ of certiorari to review the judgment of the

United States Court of Appeals for the Eleventh Circuit in

this case.

¢

OPINIONS BELOW

The opinion of the United States Court of Appeals for

the Eleventh Circuit is reported at 135 F.3d 1428 (11th Cir.

1998) and is reprinted beginning at page App. 1 of the

appendix to this petition. The opinion of the United

States District Court for the Northern District of Georgia

is unpublished and is reprinted beginning at page App.

23 of the appendix.

e

JURISDICTION

The judgment of the Court of Appeals for the Elev-

enth Circuit was entered on February 26, 1998. The peti-

tion for rehearing was denied on May 1, 1998. The

jurisdiction of this Court is invoked under 28 U.S.C.

§ 1254(1).

¢

STATUTORY PROVISIONS

The provision at issue is a portion of the Age Dis-

crimination in Employment Act (“ADEA”) specifically 29

U.S.C. § 626(d)(1). This provision is reprinted in the

appendix to this petition beginning at page App. 33.

S

STATEMENT OF THE CASE

This case presents the question, in a disparate treat-

ment case, whether an employee who is denied training

because of his age and later denied a job because of that

denial of training is forever barred from bringing suit

because he failed to file a charge of discrimination within

180 days of the denial of the training, even though he did

file a charge within 180 days of the denial of the position.

* + *

Petitioner Billy Joe Turlington was employed by the

Atlanta Gas Light Company (“AGL”) in its Information

Systems Department (“1S Department”) from May of 1967

through July of 1993. App. 2. In February 1990, having

been a Supervisor of Shift Operations for 10 years, Tur-

lington was demoted to the position of Class “A” Com-

puter Operator. Id. Turlington presented evidence that

from February of 1990 on AGL denied him the on-the-job

training, practice time, skill and software training pro-

vided to his younger co-workers. App. 2. When he com-

plained of the denial, his supervisor told him he was

incapable of learning new skills. Id.

Turlington’s evidence included the affidavit of an IS

Department employee responsible for training, Gary Boy-

kin, who confirmed that Turlington did not receive the

same training as younger employees, and who stated that

Turlington’s supervisor said, “the younger employees

were abl to grasp the new technology faster and better

than the older employees such as Mr. Turlington.” App.

2-3, n. 2. Boykin testified that Turlington not only had the

ability to learn but used his own vacation time to develop

his skills. Id.

After three years as a Class “A” Operator, Turlington

was transferred to another division of the company in

July 1993 and given a job manually constructing display

signs. App. 3.

In September 1994, Turlington attempted to return to

the IS Department by applying for a Class “C” Computer

Operator position. Id. Class “C” is a lower level than

Class “A”. Id., n. 4. On October 12, 1994, he was notified

that “[dJue to your previous performance in the depart-

ment we have rejected your request to be considered for

this posting.” R. EXH-BT, Dft. Exh. 10. Turlington filed a

charge of discrimination for failure to hire because of his

age with the EEOC on December 16, 1994. App. 3. He was

54 years old at that time. Id.

Appellant’s charge to the EEOC, attached to his Com-

plaint R. 1-1, Exh. A, stated:

I have continually been discriminated against

for the past several years due to my being over

forty years of age and not having the oppor-

tunity, in its latest instance on October 12, 1994,

to transfer to a position within Information Sys-

tems Division of the company as a computer

operator “C” salary grade 23. This is a job for

which I am qualified, trained and experienced. I

previously worked in that Department to which

I was to transfer as a computer operator.

The charge further listed Turlington’s various college

degrees in data processing, programming and business

and concluded

The only reason that my performance when I

was previously in the IS Operations Department

might have been deficient was that I had not

4

been given the appropriate training as other

younger people were.

Id.

Turlington filed a complaint in the United States

District Court for the Northern District of Georgia alleg-

ing various state law claims and violations of the Age

Discrimination in Employment Act. App. 4-5. The alleged

ADEA violations included Turlington’s demotion in Feb-

ruary of 1990, the failure to provide him adequate train-

ing from February 1990 to July 1993, his transfer in July

1993, the refusal to hire him for the Class “C” Computer

Operator position in October of 1994, and his later dis-

charge. App. 5.

Defendants filed a motion for summary judgment

which included a request for attorneys fees. Id. The dis-

trict court dismissed the state law claims, granted sum-

mary judgment to AGL on the ADEA claim and awarded

attorneys fees and costs to the Defendants. Id.

The district court’s opinion never specifically men-

tioned or analyzed Turlington’s claim for the denial of the

Class “C” Computer Operator position, but merely

Stated:

First, given the date Plaintiff filed a charge of

discrimination with the Equal Employment

Opportunity Commission, Defendant correctly

points out that this court only can consider

events occurring in June 1994 or later. 29 U.S.C.

§ 626(d)(1).

App. 27.

The district court did note that Turlington had

claimed that AGL’s evaluation and training systems dis-

criminated against older workers, but observed that the

evaluations were done prior to June 1994 and the denial

of training occurred between 1990 and 1993. App. 29. The

court concluded:

Under certain circumstances, allegedly discrimi-

natory yet unchallenged behavior, outside of the

relevant limitations period, may buttress an

ADEA claim if future employment decisions are

based on the discriminatory behavior. The court

finds that this is not such a circumstance. Indeed

plaintiff failed to present sufficient evidence in

support of his assertion that the evaluation and

training systems were discriminatory.

App. 29.

On appeal, the Eleventh Circuit vacated that portion

of the district court’s judgment awarding attorney fees

and costs.!

Although the Eleventh Circuit disagreed with the

district court's analysis in several respects,? it nonetheless

affirmed the district court’s grant of summary judgment

by holding that Turlington could not use time-barred

evidence of allegedly discriminatory training practices in

order to establish a prima facie case, relying on United Air

Lines, Inc. v. Evans, 431 U.S. 553, 97 S.Ct. 1885, 52 L.Ed.2d

971 (1977), and Del. State College v. Ricks, 449 U.S. 250, 101

S.Ct. 498, 66 L.Ed.2d 431 (1980). App. 11.

' Applying Kreager v. Solomon & Flanagan, P.A., 775 F.2d

1541, 1542-43 (11th Cir. 1985), to ADEA claims.

2 App. 9-10 & n. 10.

The Eleventh Circuit described Turlington as con-

tending that “he would have been qualified for the Class C

Computer Operator position if he had received better

training, and thus better evaluations, while working as a

Ciass A Computer Operator in the IS Department

between February 1990 and July 1993.”% App. 11.

The court stated that in Evans this Court “expressly

precluded plaintiffs from using time-barred discrimina-

tory acts to establish a prima facie case of employment

discrimination.” App. 12. It described Ricks as

“extend[ing] Evans and [holding] that a plaintiff challeng-

ing a facially neutral employment termination decision

cannot establish a prima facie case of discrimination by

demonstrating that his termination gave effect to time-

barred discriminatory acts.” App. 12-13.

¢

3 The court also stated that “Turlington does not rebut the

conclusion of Kilpatrick, the manager of the IS Department,

who determined that, in light of Turlington’s prior performance

in the IS Department, Turlington was not qualified even to be

considered for the Class C Computer Operator position.” App.

10-11. In fact, Turlington contended that his 26 years of

experience in the IS Department, including 10 years as a shift

supervisor and three years as a Class A Computer Operator,

would in any event have created a genuine issue of material fact

whether he was qualified for the lower Class C Operator’s

position.

er

REASONS FOR GRANTING THE WRIT

I. THE ELEVENTH CIRCUIT DECISION IS

DIRECTLY CONTRARY TO THIS COURT'S DECI-

SIONS IN UNITED AIR LINES V. EVANS AND DEL-

AWARE STATE COLLEGE V. RICKS.

The Eleventh Circuit based its ruling on United Air

Lines, Inc. v. Evans, 431 U.S. 553, 97 S.Ct. 1885, 52 L.Ed.2d

571 (1977), and Del. State College v. Ricks, 449 U.S. 50, 101

S.Ct. 498, 66 L.Ed.2d 431 (1980). Yet a close examination

of Evans and Ricks show that the cases are directly con-

trary to the Eleventh Circuit’s conclusion.

In Evans, the plaintiff flight attendant was terminated

in 1968 when she married (a practice later ruled illegal)

and was rehired in 1972, but denied seniority for the

intervening period. 431 U.S. at 554-55. She filed her EEOC

charge more than one year after her rehire but argued her

claim was timely and that United was guilty of a present,

continuing violation of Title VII because the seniority

system gave present effect to the past illegal discrimina-

tion. Id. at 557. This Court rejected that contention, hold-

ing that

A discriminatory act which is not made the basis

of a timely charge is the legal equivalent of a

discriminatory act which occurred before the

statute was passed.

Id. at 558 (Emphasis added).

However, the Court preceded this discussion by stat-

ing in note 9:

Respondent cannot rely for jurisdiction on the

single act of failing to assign her seniority credit

for her prior service at the time she was rehired,

for she filed her discrimination charge with the

Equal Employment Opportunity Commission on

February 21, 1973, more than one year after she

was rehired on February 16, 1972. The applica-

ble time period in February 1972 was 90

days. ...

Id. at 557.

The clear implication of this note is that had Evans

filed a charge of discrimination within 90 days of

United’s failing to assign her seniority credit at the time

she was rehired, her suit could proceed.

The situation described in note 9 of Evans is identical

to that of Petitioner Turlington. He suffered a denial of

training prior to July of 1993, a first discriminatory act.

He was rejected for the Class “C” computer operator's

position in October of 1994, a second discriminatory act.

He properly filed a charge within 180 days of the second

discriminatory act in December of 1994. Under the stan-

dards set forth in note 9 in Evans, he can properly pro-

ceed with his claim for denial of the Class “C” position.

In addition he may use the denial of training as relevant

background evidence under Evans.

Del. State College v. Ricks requires no contrary result.

Ricks was notified that he would not receive tenure in

March 1974. Following college policy, he was offered a

“one-year terminal” contract in June of 1974 to expire in

June of 1975. He filed a charge of discrimination in April

of 1975. 449 U.S. at 252-254. Ricks claimed a continuing

violation, arguing that the limitations period did not

commence to run until the terminal contract had expired.

Id. at 257. This Court held Ricks had failed to identify any

further discriminatory acts: “Indeed, the contrary is true.

It appears that termination . . . is a delayed, but inevitable,

consequence of the denial of tenure.” Id. at 257-258

(Emphasis added). Because Ricks was treated no differ-

ently from other unsuccessful tenure applicants, “the only

alleged discrimination occurred - and the filing limitations

period therefore commenced - at the time the tenure

decision was made and communicated to Ricks.” Id. at

258 (Emphasis added).

This Court observed in its note 9 that

In this case the only alleged discriminatory act is

the denial of tenure sought by a college pro-

fessor, with the termination of employment not

occurring until a later date. The application of

the general principles discussed herein neces-

sarily must be made on a case-by-case basis.

Id. at 258 (Emphasis added).

Thus, in Ricks, there was only one alleged discrimina-

tory act, the denial of tenure. The termination was, by

policy, part of the same single discriminatory act. Ricks’

termination was the inevitable consequence of the tenure

denial, under established college policy.

In Petitioner Turlington’s case, there were two dis-

crete acts of discrimination, the denial of training and the

denial of the Class C operator position. Unlike in Ricks,

the denial of the Class C operator’s position does not

inevitably flow from the denial of training, under an

established policy tying the two acts together, and is not

time-barred.

10

Il. THE ELEVENTH CIRCUIT’S DECISION IS CON-

TRARY TO THE DECISIONS OF THE FOUR

OTHER CIRCUITS WHICH HAVE EXAMINED

IDENTICAL OR ANALOGOUS CASES.

A number of other Circuit Courts of Appeal have

applied Evans and Ricks in cases identical or analogous to

that of Turlington. All have reached results contrary to

the Eleventh Circuit.

The Fourth Circuit’s decision in Lendo v. Garrett Co.

Board of Education, 820 F.2d 1365 (4th Cir. 1987), is exactly

on point with Turlington. Lendo received two “not effec-

tive” evaluations in January of 1981, which the Board of

Education relied on in denying him tenure in April 1981.

He filed a charge within 90 days of the tenure denial, but

not the evaluation. The circuit court specifically distin-

guished Ricks:

In our view, the two “not effective” evaluations

and the denial of tenure are more properly con-

sidered two separate retaliatory acts than cause

and effect. There is no question that the denial

of tenure in April was related to the two “not

effective” ratings of the previous January. Nei-

ther we, the district court, nor Lendo, however, could

arrive at that conclusion except by hindsight. When

Lendo received the January evaluations, he

could not have known with any certainty that he

would eventually be denied tenure. Assuming

the Board’s tenure procedures were conducted with

any degree of fairness, it, too, could not have known

before its April consideration whether it would deny

Lendo tenure. In Ricks, the denial of tenure was

the only discriminatory act alleged. When Ricks

received notice of the tenure denial and the

terminal contract, he knew his employment

11

would be terminated . . . In this case, however,

Lendo alleged two distinct acts: the two “not

effective” ratings and the denial of tenure. The

Board may well have granted Lendo tenure

despite the “not effective” ratings. In this ulti-

mate sense, therefore, the denia! of tenure was

not an effect of the two previous negative eval-

uations, but a separate allegedly retaliatory

act...»

We hold that, while Lendo’s first allegation is

barred by the statute of limitations, the second

is not. . . . The Board relied, in part, on the

negative evaluations in making its tenure deci-

sion and thus, the denial of tenure was related

to the evaluations. It did not, however, inevita-

bly follow the evaluations so as to be an effect of

them as contemplated by Ricks.

Id. at 1367-68 (Emphases added).

By the same reasoning, Turlington’s claim is not time-

barred by Ricks. Turlington could not have known, at the

time he was denied training, that it would inevitably

result in a later (indeed, much later) denial of the Class C

position.

Other Circuit Courts of Appeals have reached con-

clusions contrary to Turlington in Stoller v. Marsh, 682 F.2d

971 (D.C. Cir. 1982), cert. denied, 460 U.S. 1037, 103 S.Ct.

1427 (1983); Sangster v. United Air Lines, 633 F.2d 824 (9th

Cir. 1980), cert. denied, 451 U.S. 971, 101 S.Ct. 2048, 68

L.Ed.2d 350 (1981); Bouman v. Block, 940 F.2d 1211 (9th Cir.

1991); and Johnson v. General Electric, 840 F.2d 132 (1st Cir.

1988).

In Stoller v. Marsh, 682 F.2d 971 (D.C.Cir. 1982), cert.

denied, 460 U.S. 1037, 103 S.Ct. 1427 (1983), Judges Wright,

12

Edwards and Bazelon ruled that although the preparation

of an evaluation might have been a time-barred act, a

later use of that discriminatory evaluation for purposes of

a promotion decision was an “unlawful discriminatory

act in its own right.” Id. at.979, note 10. Thus, the statute

of limitations began to run anew at the time the original

discriminatory evaluation was applied to Stoller. Id. at

978-79. The court distinguished Evans: “The new direct

use of the evaluation gives it fresh significance and

should be treated as a new and independent act of dis-

crimination.” Id. The court also specifically distinguished

Ricks:

In Ricks a college professor was denied tenure

but received a one-year terminal contract; the

Court held that the filing limitations periods

commenced when the tenure decision was

made, even though plaintiff did not lose his

teaching position until later. In this case, in con-

trast, although preparation of the evaluation

may have been a discriminatory act, the 1972

screening panel’s decision is alleged to have

been an unlawful discriminatory act in its own

right.

Id., note 10.

The Ninth Circuit dealt with the scenario described

in United Air Lines v. Evans note 9, and analogous to

Turlington’s, in Sangster v. United Air Lines, 633 F.2d 864

(9th Cir. 1980), cert. denied, 451 U.S. 971, 101 S.Ct. 2048, 68

L.Ed.2d 350 (1981). In Sangster, a flight attendant married

in April of 1968, was denied a transfer because of her

marital status in November 1968, and filed a charge less

than 90 days later. The court ruled that the claim was not

time-barred under Evans. Id., 633 F.2d at 867.

13

The Ninth Circuit also distinguished Ricks in Bouman

v. Block, 940 F.2d 1211 (9th Cir. 1991). In Bouman, a Los

Angeles County sheriff’s deputy alleged sex discrimina-

tion in her failure to receive a promotion. The county

contended that the date of the administration of a promo-

tion exam and the promulgation of a resulting eligible list

was the date from which the statute of limitations should

run. Id. at 1221. The deputy contended that the date the

eligible list expired, some two years later, was the appro-

priate date from which to mark time under the statute

because she could have been promoted from the list until

that date. Id. The Ninth Circuit distinguished Ricks and

an earlier Ninth Circuit case “because in those cases

plaintiff’s termination or nonpromotion was a delayed

but inevitable result of being denied tenure or not scoring

well enough on the exam. In Bouman’s case, by contrast,

not until the list expired was it certain that she would not

be promoted. She did not know until that date that she

had suffered an injury.” Id.

The First Circuit reviewed the reasons for adopting

this view in its detailed analysis of Ricks in Johnson v.

General Electric, 840 F.2d 132 (1st Cir. 1988).4 In Johnson,

the district court had held that a claim accrued when a

discriminatory review process was established; the

employee argued that the clock began to run when he

was informed that he would not be promoted. Id. at 134.

4 Although Johnson’s conclusion in a disparate impact

case can be questioned in light of this Court’s later ruling in

Lorance v. AT&T Technologies, Inc., 490 U.S. 900, 109 S.Ct. 2261,

104 L.Ed.2d 961 (1989) (but cf., 490 U.S. at 917-919, dissent of

Marshall, J.) its reasoning still applies in a case of disparate

treatment such as Petitioners’.

14

The district court had relied on Ricks to dismiss the claim

as time-barred. Id. The First Circuit found this reliance in

error, emphasizing Ricks admonition that the proper

focus is “upon the time of the discriminatory acts, not

upon the time at which the consequences of the acts

became most painful.” Id. Observing that subsequent

appellate cases had struggled to apply Ricks in various

circumstances, the court stated:

The issue can alternatively be framed as

whether the applications of a discriminatory

employment plan or evaluation constitute sepa-

rate, cognizable discriminatory acts under Ricks,

or whether they are merely consequences of ear-

lier discriminatory acts. In other words, can the

statute of limitations start running before there

is certainty that any adverse employment deci-

sion disadvantaging the plaintiff will result

from the discrimination?

Id. at 134-135.

The First Circuit observed that most circuits

[H]ave reasoned, instead, that the application of

a discriminatory system to a particular substan-

tive decision (e.g., to promote, demote, fire, or

award benefits), constitutes an independent dis-

criminatory act which can trigger the com-

mencement of the statute of limitations.

Id. at 135, and concluded:

If the “notice” standard articulated in Ricks and

in Chardon v. Fernandez, 454 U.S. 6, 102 S.Ct. 28,

70 L.Ed.2d 6 (1981) (per curiam), is extended to

cases where none of the implications of an eval-

uation, policy, or system have crystallized, a

cause of action could accrue only when the

15

plaintiff becomes subject to the discrimination,

rather than when the discrimination causes any

harm to the employee.

Id. at 136.

The Court also raised the point of ripeness:

In addition, it is far from clear whether claims

under Title VII and analogous statutes would be

ripe for adjudication until discriminatory sys-

tems were actually applied to plaintiffs in a par-

ticular employment decision. In Ricks, the

professor’s claim undoubtedly was ripe as soon

as he was notified of his imminent dismissal.

But it is questionable whether an action by an

employee who has not yet suffered any injury as

a result of a discriminatory system is sufficiently

ripe.

Id.

By the same standard, Petitioner Turlington should

not be required to file a claim before the effects of the

discrimination have been visited upon him. It makes no

sense to require him to file a charge of discrimination

over the lack of training before that lack of training has

been manifest in his later denial of a job.

The Eleventh Circuit’s decision below is contrary to

the established positions of the First, Fourth, Ninth and

District of Columbia Circuits. This Court should take up

this case to resolve this conflict.

¢

16

CONCLUSION

The petition for writ of certiorari should be granted.

Respectfully submitted,

Davip J. Wor.ey

NorMan J. SLawsky

Jacoss AND SLawsky, P.A.

1950 Equitable Building

100 Peachtree Street

Atlanta, GA 30303

(404) 522-4280

Counsel for Petitioners

July 30, 1998

App. 1

Billy Joe TURLINGTON and Ellen Jocile

Turlington, Plaintiffs-Appeilants,

V.

ATLANTA GAS LIGHT COMPANY, Randy Curry,

Robert Miller, Defendants-Appellees.

No. 97-8071.

United States Court of Appeals,

Eleventh Circuit.

Feb. 26, 1998.

Appeal from the United States District Court for the

Northern District of Georgia.

Before BIRCH, Circuit Judge, HILL and KRAVITCH,

Senior Circuit Judges.

KRAVITCH, Senior Circuit Judge:

This case raises two important issues regarding the

Age Discrimination in Employment Act of 1967

(“ADEA”), 29 U.S.C. §§ 621-34: the timing requirements

for filing discrimination charges with the Equal Employ-

ment Opportunity Commission (“EEOC”) and the stan-

dard for awarding attorney’s fees to prevailing

defendants.

Plaintiffs-appellants Billy Joe Turlington (“Tur-

lington”) and his wife, Ellen Jocile Turlington (“Mrs. Tur-

lington”), sued the Atlanta Gas Light Company (“AGL”)

and two AGL employees, Randy Curry and Robert Miller,

alleging, inter alia, that AGL discriminated against Tur-

lington on the basis of his age in violation of the ADEA.

The district court granted summary judgment to AGL on

iia aiid ta

App. 2

this claim and awarded attorney’s fees to AGL.! The

Turlingtons appeal both rulings.

We affirm the district court’s grant of summary judg-

ment to AGL, but we vacate the attorney’s fees award

and remand the case to the district court to decide

whether the Turlingtons litigated in bad faith and to

substantiate its determination with appropriate findings.

I.

Turlington was employed by AGL from May 1967 to

March 1995. Initially, he worked in AGL’s Information

Systems Department (“IS Department”), where he rose to

the position of Supervisor of Shift Operations. In Febru-

ary 1990, he was demoted to Class A Computer Operator

for failing to demonstrate job improvement during the

prior year. Turlington presented evidence indicating that

AGL, beginning in February 1990, denied him the same

on-the-job training, practice time, skill training, and soft-

ware training that it provided to his younger co-workers.

Although Turlington complained about the denial of

training, his supervisors told him that he was incapable

of learning new skills.?

' The Turlingtons’ remaining claims were either abandoned

at the summary judgment stage or dismissed by the district

court.

? Among the evidence presented by Turlington was the

affidavit of Gary Boykin, an IS Department employee with

responsibility for training. Boykin confirmed that Turlington

did not receive the same training as younger employees. Boykin

also stated that Turlington’s supervisor, Ed Norwood, said “that

the younger employees were able to grasp the new technology

Eh

App. 3

On July 9, 1993, having received four consecutive

below-acceptable annual performance evaluations, Tur-

lington was transferred to the Display Department,

where he worked constructing signs manually. In an

effort to block the transfer, Turlington submitted a writ-

ten protest, which was prepared by a lawyer. The attor-

ney also wrote AGL’s Chief Executive Officer stating that

he was representing Turlington “for the discriminatory

action taken against [Turlington] over the last several

years culminating with his transfer.” Turlington file¢ no

discrimination charges with the EEOC at the time.

A year later, Turlington was siill working in the

Display Department when he applied for a Class C Com-

puter Operator position in the IS Department.* On Octo-

ber 12, 1994, Dale Kilpatrick, manager of the IS

Department, informed Turlington that he would not be

considered for the position because of his previous per-

formance in the IS Department. Turlington was 54 years

old at the time.

On December 16, 1994, Turlington filed a discrimina-

tion charge with the EEOC alleging that AGL discrimi-

nated against him based on age by denying his

faster and better than the older employees such as Mr.

Turlington.” Affidavit of Boykin at 4-5. According to Boykin,

Turlington not only had the ability to learn but also used

vacation time to develop his computer skills.

3 Plaintiff’s Ex. 6 at 1. This lawyer, Ted B. Herbert, was one

of the lawyers representing Turlington in the district court

proceedings in the instant case.

4 The Class C Computer Operator position is ranked lower

than the Class A Computer Operator position.

App. 4

application for the Class C Computer Operator position

and subsequently hiring a 23-year-old man for that posi-

tion.> The accompanying affidavit stated that Turlington

failed to obtain the job because his supervisors in the IS

Department did not provide the same technical training

to Turlington as they did to his younger co-workers.

On January 4, 1995, the staff of the Display Depart-

ment was told that the Display Department would be

downsized to a single Display Coordinator. Later that

month the Display Coordinator position was posted, and

Turlington and two other candidates applied. After inter-

views and evaluations, a three-person panel rated each

applicant, and based on these ratings, one of Turlington’s

two competitors, a 44-year-old man, was selected for the

position. On February 17, 1995, Turlington amended his

EEOC charge to incorporate his claim that AGL’s failure

to select him as Display Coordinator was discriminatory.

Turlington’s employment at AGL ended in March 1995.

In July 1995, the plaintiffs filed suit in federal district

court alleging that the defendants: (1) discriminated

against Turlington on the basis of his age in violation of

the ADEA; (2) retaliated against Turlington for filing an

EEOC charge; (3) breached contractual obligations to Tur-

lington in violation of Georgia law; (4) intentionally and/

> In his brief, Turlington states that he filed his EEOC

charge on October 12, 1994, but the record indicates otherwise.

© Not at issue in this appeal is the fact that Turlington

decided not to choose early retirement, an option available to

him from November 15, 1994, to January 3, 1995.

ee re ae

App. 5

or negligently inflicted emotional distress upon Tur-

lington in violation of Georgia law; and (5) caused Mrs.

Turlington’s loss of consortium under Georgia law.

) Turlington’s complaint alleged that AGL violated the

ADEA in several ways, including: (1) demoting him in

February 1990; (2) failing to provide him adequate train-

ing from February 1990 to July 1993, thus “doom[ing]

[him] to poor performance”? and substandard evalua-

tions; (3) transferring him in July 1993; (4) refusing to hire

him for the Class C Computer Operator position in Octo-

ber 1994; (5) refusing to hire him for the Display Coor-

dinator position in 1995; and (6) thereafter discharging

him.

Defendants filed a motion for summary judgment,

which included a request for reasonable attorney’s fees.

The district court dismissed plaintiffs’ claims against

defendants Curry and Miller; deemed the retaliation,

breach of contract, and emotional distress claims aban-

doned; dismissed the loss of consortium claim; granted

summary judgment to AGL on the ADEA claim; and

awarded attorney’s fees and costs to AGL. Turlington

appeals the district court’s resolution of the ADEA claim

and the award of attorney’s fees.

On appeal, Turlington has narrowed significantly the

basis of his ADEA allegations, arguing only that AGL

discriminated against him on the basis of age when it

denied him the Class C Computer Operator position in

October 1994. According to Turlington, that decision was

discriminatory because it was based on Turlington’s poor

OL Gye Re ceca

7 Complaint at 6, { 16.

SRE “Ree Serer mone RN en =e

App. 6

evaluations in the IS Department, which in turn resulted

from AGL’s discriminatory denial of training.

I.

A.

This court reviews de novo a district court’s grant of

summary judgment. We apply the same legal standards

that bound the district court and view all facts and any

reasonable inferences therefrom in the light most favor-

able to the non-moving party. See Hale v. Tallapoosa

County, 50 F.3d 1579, 1581 (11th Cir.1995). Summary judg-

ment is appropriate only when “there is no genuine issue

of material fact and . . . the moving party is entitled to

judgment as a matter of law.” Fed.R.Civ.P. 56(c).

Where, as here, a plaintiff attempts to use circum-

stantial evidence to establish unlawful discrimination

under the ADEA, this court employs the following bur-

den-shifting scheme. Initially, the plaintiff must establish

a prima facie case of discrimination. The employer then

must respond with a legitimate, nondiscriminatory rea-

son for its actions. In order to prevail, the plaintiff must

establish that the employer’s articulated legitimate, non-

discriminatory reason was a pretext to mask unlawful

discrimination. See Walker v. NationsBank of Fla. N.A., 53

F.3d 1548, 1556 (11th Cir.1995).

In an ADEA case involving discharge, demotion, or

failure to hire, a plaintiff may establish a prima facie case

by showing: (1) that he was a member of the protected

group of persons between the ages of forty and seventy;

(2) that he was subject to adverse employment action; (3)

App. 7

that a substantially younger person filled the position

that he sought or from which he was discharged; and (4)

that he was qualified to do the job for which he was

rejected. See O'Connor v. Consolidated Coin Caterers Corp.,

| 517 U.S. 308, 313, 116 S.Ct. 1307, 1310, 134 L.Ed.2d 433

| (1996) (stating that an ADEA plaintiff must show that he

was replaced by someone “substantially younger,” not

necessarily by someone under age 40); Jameson v. Arrow

— Co., 75 F.3d 1528, 1531 (11th Cir.1996) (listing elements of

prima facie case). We apply this prima facie standard to

Turlington’s claim that AGL discriminated by denying

him the Class C Computer Operator position in 1994.

Although a plaintiff’s burden in proving a prima facie

case is light, see Isenbergh v. Knight-Ridder Newspaper Sales,

Inc., 97 F.3d 436, 439 (11th Cir.1996), cert. denied, __ US.

—~ 117 S.Ct. 2511, 138 L.Ed.2d 1014 (1997), summary

judgment against the plaintiff is appropriate if he fails to

satisfy any one of the elements of a prima facie case. For

example, summary judgment is appropriate against a

plaintiff who fails to demonstrate that he was qualified to

perform the position for which he was rejected. See Baker

v. Sears, Roebuck & Co., 903 F.2d 1515, 1520-21 (11th

Cir.1990) (per curiam) (holding that terminated plaintiff

failed to make out prima facie case under the ADEA;

ruling that she was not qualified given her consistent

failure to meet employer’s quota for sale of maintenance

agreements, a requirement of the position).

App. 8

B.

In granting summary judgment to AGL on Tur-

lington’s ADEA claim, the district court held that Tur-

lington failed to establish a prima facie case. Citing Roberts

v. Gadsden Mem’l Hosp., 835 F.2d 793, 796 (11th Cir.),

amended by 850 F.2d 1549 (1988), which addressed a Title

VII claim rather than an ADEA claim, the district court

stated that a plaintiff seeking to demonstrate a prima facie

case under the ADEA must demonstrate, inter alia, that “a

person outside of the plaintiff’s class with equal or lesser

qualifications was promoted, or the employer continued

to seek applicants after the plaintiff was rejected for the

position.”§ Then, focusing on AGL’s denial of the Display

Coordinator position, the district court ruled that Tur-

lington failed to establish a prima facie case because the

three-person panel that rated the applicants deemed the

successful candidate to be more qualified than Tur-

lington.

Moreover, according to the district court, Turlington

could not establish a prima facie case by arguing that he

would have been as qualified as the successful candidate

but for AGL’s allegedly discriminatory training practices.

The district court ruled that such practices could not be

used to establish a prima facie case because they ended in

July 1993, prior to 180 days before Turlington filed

charges with the EEOC in December 1994. See 29 U.S.C.

§ 626(d)(1) (stating that an employee claiming a violation

of the ADEA must file charges with the EEOC not more

8 Summary Judgment Order at 6.

App. 9

than 180 days after the date of the allegedly unlawful

practice).

On appeal, Turlington argues that the district court

erred in two ways: first, by addressing only AGL’s denial

of the Display Coordinator position, not the denial of the

Class C Computer Operator position, and second, by

concluding that 29 U.S.C. § 626(d)(1) precluded Tur-

lington from using time-barred evidence to help establish

a prima facie case. Abandoning all of his other allegations

of ADEA violations, Turlington now argues only that he

would have been qualified for the Class C Computer

Operator position absent AGL’s discriminatory training

practices from February 1990 to July 1993.

.

Although we disagree with some of the district

court’s analysis, we nonetheless affirm the district court’s

grant of summary judgment to AGL on Turlington’s

ADEA claim.? We note that a plaintiff seeking to establish

a prima facie case under the ADEA must show only that

he was qualified to do the job for which he was rejected,

see Jameson v. Arrow Co., 75 F.3d 1528, 1531 (11th Cir.1996),

and, unlike a Title VII plaintiff, need not show that a

9 We may affirm the district court’s decision for reasons

different than those stated by the district court. See Sec. & Exch.

Comm'n v. Chenery Corp., 318 U.S. 80, 88, 63 S.Ct. 454, 459, 87

L.Ed. 626 (1943) (stating that the decision of the lower court

must be affirmed if the result is correct even though the lower

court relied upon a wrong ground or gave a wrong reason), cited

in C.H. Rebinson Co. v. Trust Co. Bank, N.A., 952 F.2d 1311, 1316

(11th Cir.1992).

App. 10

person outside of the plaintiff’s class with equal or lesser

qualifications received the job, cf. Roberts v. Gadsden

Mem'l Hosp., 835 F.2d 793, 796 (11th Cir.) (Title VII case),

amended by 850 F.2d 1549 (1988). The district court thus

erred in ruling that Turlington, in establishing a prima

facie case, had to show that “a person outside of the plain-

tiff’s class with equal or lesser qualifications was promoted, or

[that] the employer continued to seek applicants after the

plaintiff was rejected for the position.” Summary Judg-

ment Order at 6 (emphasis added).1°

Because the district court primarily addressed AGL’s

denial of the Display Coordinator position, the district

court did not squarely determine whether AGL’s denial

of the Class C Computer Operator position was discrimi-

natory. Upon reviewing this allegation, we hold that Tur-

lington failed to establish a prima facie case with regards [sic]

to that adverse employment action. Turlington does not

rebut the conclusion of Kilpatrick, the manager of the IS

Department, who determined that, in light of Turlington’s

prior poor performance in the IS Department, Turlington

was not qualified even to be considered for the Class C

10 The district court also erred by implying that an ADEA

plaintiff could not make out a prima facie case unless he were

replaced by someone outside the protected age class. See

O'Connor v. Consolidated Coin Caterers Corp., 517 U.S. 308, 313,

116 S.Ct. 1307, 1310, 134 L.Ed.2d 433 (1996) (stating that an

ADEA plaintiff must show that he was replaced by someone

“substantially younger,” not necessarily by someone under age

40). Furthermore, the district court incorrectly stated that the

question of whether “the employer continued to seek applicants

after the plaintiff was rejected for the position” is relevant in

determining if an ADEA plaintiff has established a prima facie

case.

App. 11

Computer Operator position. Because he was rejected so

early in the decisionmaking process, Turlington has failed

to demonstrate his qualifications for the job. Cf. Isenbergh

v. Knight-Ridder Newspaper Sales, Inc., 97 F.3d 436, 440

(11th Cir.1996) (“[B]ecause the decisionmakers for [the

employer] were familiar with [the employee’s] perfor-

mance in his work . . . we can infer from the fact that he

was granted an interview that [the employee] was at least

at some level qualified for the new job.”), cert. denied, ___

U.S. __, 117 S.Ct. 2511, 138 L.Ed.2d 1014 (1997). Even

though the requirements of a prima facie case are light, see

id. at 439, Turlington has failed to meet this burden, see

Baker v. Sears, Roebuck, & Co., 903 F.2d 1515, 1520-21 (11th

Cir.1990) (per curiam) (ruling that ADEA plaintiff was

not qualified for her position and thus did not establish a

prima facie case).

Turlington contends that he would have been qualified

for the Class C Computer Operator position if he had

received better training, and thus better evaluations,

while working as a Class A Computer Operator in the IS

Department between February 1990 and July 1993. We

hold, however, that the district court correctly ruled that

Turlington could not use time-barred evidence of

allegedly discriminatory training practices in order to

establish a prima facie case. Two Supreme Court cases,

United Air Lines, Inc. v. Evans, 431 U.S. 553, 97 S.Ct. 1885,

52 L.Ed.2d 571 (1977), and Del. State College v. Ricks, 449

U.S. 250, 101 S.Ct. 498, 66 L.Ed.2d 431 (1980), support the

district court’s analysis."

11 The ADEA 180-day limitations period, see 29 U.S.C.

§ 626(d)(1), is quite similar to the Title VII limitations period, see

EES TL

App. 12

In Evans, the Court expressly precluded plaintiffs from

using time-barred discriminatory acts to establish a prima

facie case of employment discrimination. The plaintiff in

Evans was forced to resign in 1968 when she married in

violation of the company’s policy of refusing to allow its

female flight attendants to be married. 431 U.S. at 554, 97

S.Ct. at 1887. Although the plaintiff was rehired in 1972 after

the policy was invalidated, she was not awarded seniority

credit for her time off. Id. at 555, 97 S.Ct. at 1887. The Court

held that the plaintiff could not attack the otherwise neutral

seniority system merely by demonstrating that the system

gave present effect to past discrimination.

[A] discriminatory act which occurred before the

statute was passed . . . may constitute relevant

background evidence in a proceeding in which the

status of a current practice is at issue, but sep-

arately considered, it is merely an unfortunate

event in history which has no present legal conse-

quences. . . . [SJuch a challenge to a neutral system

may not be predicated on the mere fact that a past

event which has no present legal significance has

affected the calculation of seniority credit, even if

the past event might at one time have justified a

valid claim against the employer.

Id. at 558-60, 97 S.Ct. at 1889-90.

In Ricks, the Court extended Evans and held that a

plaintiff challenging a facially neutral employment termi-

nation decision cannot establish a prima facie case of

discrimination by demonstrating that his termination

42 U.S.C. § 2000e-5(e)(1). Thus, although Evans and Ricks are

Title VII cases, they provide clear guidance in the instant ADEA

case.

App. 13

gave effect to time-barred discriminatory acts.!* Explicitly

rejecting the plaintiff’s “continuing violation” theory, see

449 U.S. at 257-58, 101 S.Ct. at 504-05, the Court stated:

It is simply insufficient for [the employee] to

allege that his termination gives present effect to

the past illegal act and therefore perpetuates the

consequences of forbidden discrimination. The

emphasis is not upon the effects of earlier

employment decisions; rather, it is upon

whether any present violation exists.

Id. at 258, 101 S.Ct. at 504 (quoting Evans, 431 U.S. at 558,

97 S.Ct. at 1888) (internal quotations omitted) (emphasis

in original).

In light of Evans and Ricks, Turlington failed to estab-

lish a prima facie case of discrimination. Turlington alleges

that AGL’s denial of the Class C Computer Operator

position in October 1994, although not discriminatory on

its face, nonetheless violated the ADEA by giving effect

12 The plaintiff in Ricks, after being denied tenure, received

a one-year “terminal” contract. 449 U.S. at 252-53, 101 S.Ct. at

501. He only filed charges with the EEOC, however, near the

end of that contract. Id. at 254, 101 S.Ct. at 502. Because the

denial of tenure occurred long before the filing of the EEOC

charge, the Court held that the plaintiff’s termination was

facially neutral.

[T]he only alleged discrimination occurred — and the

filing limitations period therefore commenced — at the

time the tenure decision was made and

communicated to Ricks. That is so even though one of

the effects of the denial of tenure — the eventual loss of

a teaching position - did not occur until later. . . .

Id. at 258, 101 S.Ct. at 504 (footnote omitted) (emphasis in

original).

App. 14

to past acts of discrimination that occurred from February

1990 to July 1993.13 Because plaintiffs may not use time-

barred discriminatory acts to help establish a prima facie

case of discrimination, see Evans, 431 U.S. at 558-60, 97

S.Ct. at 1889-90, evidence of AGL’s prior training prac-

tices cannot render discriminatory AGL’s facially neutral

decision to deem Turlington unqualified for the Class C

Computer Operator position, see Ricks, 449 U.S. at 258,

101 S.Ct. at 504.14

We also reject the application of equitable tolling to

this case. ADEA’s timing requirements might have been

13 The district court correctly found that the allegedly

discriminatory training practices ended in July 1993, more than

180 days before Turlington’s initial EEOC filing in December

1994. Although the complaint does allege that Turlington was

denied requests for computer training while in the Display

Department, the complaint does not state that this denial of

training was discriminatory.

14 Recent precedent in this circuit supports our

determination that Turlington failed to present a “continuing

violation” that would allow AGL’s liability to be premised on

time-barred acts. See Calloway v. Partners Nat'l Health Plans, 986

F.2d 446, 448 (11th Cir.1993) (distinguishing between “the

present consequence of a one time violation, which does not

extend the limitations period, and the continuation of the

violation into the present, which does”) (quoting Beavers v. Am.

Cast Iron Pipe Co., 975 F.2d 792, 796 (11th Cir.1992)). No

continuing violation existed here because AGL’s allegedly

discriminatory training practices ended prior to 180 days before

Turlington filed charges with the EEOC. Cf. Reed v. Lockheed

Aircraft Corp., 613 F.2d 757, 760, 762 (9th Cir.1980) (applying

continuing violations theory where allegedly discriminatory

promotion, compensation, and training policies continued to

exist during the 180-day time period prior to the filing of the

EEOC charge).

App. 15

equitably tolled if, in the period prior to the 180 days

before filing the initial EEOC charge, Turlington had no

reason to believe he was a victim of unlawful discrimina-

tion. See Ross v. Buckeye Cellulose Corp., 980 F.2d 648, 660

(11th Cir.1993), cert. denied, 513 U.S. 814, 115 S.Ct. 69, 130

L.Ed.2d 24 (1994).15 The evidence, however, indicates that

Turlington, during his time as a Class A Computer Oper-

ator in the IS Department, protested vigorously against

his failure to receive the same training opportunities

offered to his younger co-workers. Moreover, Turlington

retained his district court counsel at least as of July 9,

1993, upon being transferred out of the IS Department.

Under these circumstances, Turlington cannot rely on the

theory of equitable tolling to preserve his right to hold

AGL liable for discriminatory training practices. See

15 We need not address here all of the possible grounds for

overlooking the ADEA’s timing requirements. Cf. Zipes v. Trans

World Airlines, Inc., 455 U.S. 385, 393, 102 S.Ct. 1127, 1132, 71

L.Ed.2d 234 (1982) (“[F]iling a timely charge of discrimination

with the EEOC is not a jurisdictional prerequisite to suit in

federal court, but a requirement that, like a statute of

limitations, is subject to waiver, estoppel, and equitable

tolling.”).

16 Turlington would have had an actionable claim under

the ADEA for denial of training only if, after filing a charge of

discrimination with the EEOC in a timely fashion, Turlington

had established that AGL denied material training

opportunities to him on the basis of age. As this court has held,

the ADEA “forbids far more than merely discriminatory

discharge and hiring practices.” See Stamey v. S. Bell Tel. & Tel.

Co., 859 F.2d 855, 860 (11th Cir.1988), cert. denied, 490 U.S. 1116,

109 S.Ct. 3178, 104 L.Ed.2d 1040 (1989). The ADEA makes it

illegal for employers “to fail or refuse to hire or to discharge any

individual or otherwise discriminate against any individual

with respect to his compensation, terms, conditions, or

Ee

App. 16

McClinton v. Ala. By-Products Corp., 743 F.2d 1483, 1487

(11th Cir.1984) (rejecting equitable tolling where ADEA

plaintiff “suspects that he may have been discriminated

against on account of age and is also generally aware of

his legal right to obtain redress for that wrong”). The

ADEA’s limitations period thus bars Turlington from

establishing a prima facie case based on evidence of AGL’s

prior discrimination in training.

D.

Turlington cites several cases purporting to demon-

strate that he may establish a prima facie case with the

help of time-barred evidence of AGL’s discriminatory

training practices. Turlington, however, fails to dispute

the controlling authority of Evans and Ricks. Moreover,

the cases he cites are inapposite.

For example, four cases merely hold that a plaintiff

can use evidence of time-barred discriminatory conduct

privileges of employment, because of such individual's age.” 29

U.S.C. § 623(a)(1). Discrimination with respect to training

programs is thus actionable under the ADEA, see Kusak v.

Ameritech Info. Sys., Inc., 80 F.3d 199, 201 (7th Cir.1996) (“An

employer might offer training programs, promotion

opportunities, or disability benefits to its employees, and the

ADEA makes it clear that the employer may not condition

access to those benefits on the age of the employee.”), as long as

the training is materially related to the employee’s job

responsibilities or possibilities for advancement, cf. Crady v.

Liberty Nat'l Bank & Trust Co. of Ind., 993 F.2d 132, 135-36 (7th

Cir.1993) (stating that ADEA plaintiff must allege “materially

adverse employment action”).

App. 17

to meet his burden of persuasion in a case involving cir-

cumstantial evidence of discrimination. See Allen v.

County of Montgomery, 788 F.2d 1485, 1488 (11th Cir.1986);

Downey v. S. Natural Gas Co., 649 F.2d 302, 304-05 (5th Cir.

Unit B June 1981); Fisher v. Procter & Gamble Mfg. Co., 613

F.2d 527, 540 (5th Cir.1980), cert. denied, 449 U.S. 1115, 101

S.Ct. 929, 66 L.Ed.2d 845 (1981); Mathewson v. Nat'l Auto-

matic Tool Co., Inc., 807 F.2d 87, 91 (7th Cir.1986). In none

of these cases did the court hold that a plaintiff could use

evidence of time-barred conduct to establish a prima facie

case of discrimination. To the contrary, in Taylor v. Hudson

Pulp & Paper Corp., 788 F.2d 1455, 1461-62 (11th Cir.1986),

cert. denied, 484 U.S. 953, 108 S.Ct. 345, 98 L.Ed.2d 371

(1987), this court explicitly excluded time-barred conduct

in determining that the plaintiff failed to establish a prima

facie case of discrimination.

Turlington also relies on three disparate impact cases

that are not applicable here. See Walker v. Jefferson County

Home, 726 F.2d 1554 (11th Cir.1984); Crawford v. Western

Elec. Co., Inc., 614 F.2d 1300, 1314 (5th Cir.1980); Gonzalez

v. Firestone Tire & Rubber Co., 610 F.2d 241 (5th Cir.1980).

In Walker, the plaintiff sued for failing to be selecte:i for

an employment position in 1974. 726 F.2d at 1557. The

court held that the employer’s decision in 1974 was ais-

criminatory, though neutral on its face, because the deci-

sion was based on the plaintiff’s lack of supervisory

authority, which in turn resulted from the employer’s

discriminatory decision in 1972 to deny the plaintiff a

supervisory position. Id. at 1558. Recognizing that Evans,

supra, would bar consideration of the 1972 action in a

disparate treatment case, the court deemed the 1972

App. 18

action relevant because Walker’s claim could be charac-

terized as one of disparate impact. Id. at 1557 & n. 1. Like

Walker, Crawford and Gonzalez also involved disparate

impact claims. See Crawford, 614 F.2d at 1314-18; Gonzalez,

610 F.2d at 244, 249.

Turlington’s claim, however, is not based on dispa-

rate impact.!” To demonstrate disparate impact, a plaintiff

must demonstrate that an employer’s facially neutral

practice or test had an adverse impact on a particular

protected group. See Edwards v. Wallace Community Col-

lege, 49 F.3d 1517, 1520 (11th Cir.1995). Turlington does

not allege that older workers as a class were denied

training, but only that he was denied training because of

'7 Because we rule that Turlington’s claim did not

incorporate a disparate impact theory, we need not reach two

additional issues: whether Walker is still valid law in light of

Ross v. Buckeye Cellulose Corp., 980 F.2d 648 (11th Cir.1993)

(rejecting disparate impact claim because freezing of

compensation levels within 180 days of EEOC filing merely

gave effect to prior discriminatory pay and progression system

and did not constitute continuing discrimination), cert. denied,

513 U.S. 814, 115 S.Ct. 69, 130 L.Ed.2d 24 (1994), and whether the

ADEA permits disparate impact claims. Neither this court nor

the Supreme Court expressly has allowed disparate impact

claims under the ADEA. See Hazen Paper Co. v. Biggins, 507 U.S.

604, 610, 113 S.Ct. 1701, 1706, 123 L.Ed.2d 338 (1993) (reserving

the issue). Compare District Council 37 v. New York City Dep't of

Parks and Recreation, 113 F.3d 347, 351 (2d Cir.1997) (holding that

disparate impact theory is cognizable under ADEA), with EEOC

v. Francis W. Parker Sch., 41 F.3d 1073, 1076-78 (7th Cir.1994)

(suggesting that disparate impact theory is not cognizable

under ADEA), cert. denied, 515 U.S. 1142, 115 S.Ct. 2577, 132

L.Ed.2d 828 (1995).

App. 19

his age. Because Turlington’s case relies solely on a dispa-

rate treatment theory, Evans and Ricks preclude him from

using time-barred discriminatory acts to establish a prima

facie case of discrimination. We thus affirm the district

court’s grant of summary judgment against him.

Il.

Finally, we address the question of whether the dis-

trict court erred in awarding attorney’s fees to AGL. After

granting summary judgment to AGL, the district court

issued a separate order granting defendants reasonable

attorney’s fees and costs and dismissing the action. The

district court made no findings in support of this order.§

The Turlingtons argue that the district court abused its

discretion by awarding attorney's fees to the prevailing

defendants without having found that the Turlingtons

litigated in bad faith.

We review de novo the legal basis of a district court’s

decision to award attorney’s fees to prevailing defen-

dants. Cf. Kreager v. Solomon & Flanagan, P.A., 775 F.2d

1541, 1542-43 (11th Cir.1985). This circuit has not deter-

mined the circumstances under which a prevailing defen-

dant may obtain attorney’s fees in an ADEA case.

The ADEA incorporates selected provisions of the

Fair Labor Standards Act (“FLSA”), including those per-

taining to attorney’s fees. See 29 U.S.C. § 626(b) (stating

18 Indeed, with the exception of a brief request for

attorney's fees in defendants’ motion for summary judgment,

the parties did not litigate the issue of attorney’s fees before the

district court.

App. 20

that attorney’s fees provision of the FLSA, 29 U.S.C.

§ 216(b), applies to actions brought under the ADEA).

Although the attorney’s fees provision of the FLSA does

not address whether, or under what circumstances, attor-

ney’s fees should be awarded to a prevailing defendant,

see 29 U.S.C. § 216(b), this court has held that the FLSA

entitles a prevailing defendant to attorney’s fees only

where the district court finds that the plaintiff litigated in

bad faith, see Kreager, 775 F.2d at 1542-43 (citing Alyeska

Pipeline Serv. Co. v. Wilderness Soc’y, 421 U.S. 240, 258-59,

95 S.Ct. 1612, 1622, 44 L.Ed.2d 141 (1975) (stating that

courts have the “inherent power” to assess attorney’s fees

where a losing party has “acted in bad faith, vexatiously,

wantonly, or for oppressive reasons”)). Given the close

relationship between the ADEA and the FLSA, see 29

U.S.C. § 626(b), we hold that a district court may award

attorney’s fees to a prevailing ADEA defendant only

upon a finding that the plaintiff litigated in bad faith.

Several other circuits have so ruled. See EEOC v. Hendrix

College, 53 F.3d 209, 211 (8th Cir.1995); EEOC v. O& G

Spring & Wire Forms Specialty Co., 38 F.3d 872, 883 (7th

Cir.1994); Gray v. New England Tel. & Tel. Co., 792 F.2d 251,

260 & n. 1 (1st Cir.1986); Morgan v. Union Metal Mfg., 757

F.2d 792, 796 (6th Cir.1985).19

19 This rule differs significantly from the rule governing the

award of attorney’s fees to prevailing defendants in Title VII

cases. Title VII, unlike the ADEA and the FLSA, explicitly

authorizes the award of attorney’s fees to “the prevailing

party.” See 42 U.S.C. § 2000e-5(k). Thus, in Title VII cases, a

district court “may in its discretion award attorney’s fees to a

prevailing defendant . . . upon a finding that the plaintiff's

action was frivolous, unreasonable, or without foundation, even

though not brought in subjective bad faith.” Christiansburg

App. 21

Here, the district court made no findings whatsoever

regarding the Turlingtons’ bad faith in litigating the case.

On appeal, AGL points to several of the Turlingtons’

litigation decisions as evidence of their bad faith. We

believe, however, that an inquiry into a party’s bad faith

is best conducted by the district court.2° We thus vacate

the attorney’s fees award and remand the case to the

district court to decide whether the Turlingtons litigated

in bad faith and to substantiate its determination with

Garment Co. v. EEOC, 434 U.S. 412, 421, 98 S.Ct. 694, 700, 54

L.Ed.2d 648 (1978).

20 Relying on Head v. Medford, 62 F.3d 351 (11th Cir.1995),

AGL contends that this court should decide whether the

Turlingtons litigated in bad faith. In Head, the district court

granted summary judgment to the defendants on the plaintiff's

federal civil rights claims, but failed to award attorney’s fees to

the defendants. Id. at 353-55. A prevailing civil rights defendant

is entitled to attorney’s fees if the plaintiff’s claim was

“frivolous, unreasonable, or without foundation, even though

not brought in subjective bad faith.” Id. at 355 (citation omitted)

(describing attorney's fees statute, 42 U.S.C. § 1988). The Head

court held that the plaintiff's claims were legally frivolous and

that the defendants were entitled to attorney’s fees “unless the

district court points out special circumstances that justify

making no award of fees.” Id.

This court’s limited remand in Head, however, is not

relevant here. In contrast to the defendants in Head, prevailing

defendants in ADEA cases are entitled to attorney’s fees only if

the plaintiffs litigated in bad faith. We believe that the

determination of bad faith is a complex inquiry that should be

conducted initially by the district court, not an appellate court.

See Roadway Express, Inc. v. Piper, 447 U.S. 752, 767, 100 S.Ct.

2455, 2465, 65 L.Ed.2d 488 (1980) (ruling that the district court

erred in awarding attorney’s fees to a prevailing defendant

without making findings as to bad faith; directing that the case

be returned to the district court to make appropriate findings).

App. 22

appropriate findings. See Kreager, 775 F.2d at 1543 (vacat-

ing and remanding where district court awarded attor-

ney’s fees to prevailing defendant in FLSA case without

making specific findings of bad faith).

AFFIRMED IN PART. VACATED AND REMANDED

IN PART.

App. 23

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF GEORGIA

ATLANTA DIVISION

BILLY JOE TURLINGTON,

et al.,

CIVIL ACTION NO.

1:95-cv-1872-CC

Plaintiffs,

VS.

ATLANTA GAS LIGHT

COMPANY, et al.

Defendants,

ORDER

(Filed Nov. 27, 1996)

Pending before the Court are Defendants’ Motion for

Summary Judgment [16-1] and Plaintiff’s Request for

Extension of Time to Respond to Defendants’ Motion for

Summary Judgment [19-1].

FACTS

Plaintiff Billy Joe Turlington (“Plaintiff”) was

employed by the Atlanta Gas Light Company (“Defen-

dant”) from May 31, 1976 [sic] until March 1995. Plaintiff

was employed in Defendant’s Information Systems

Department (“IS Department”) until July 9, 1993. In July

1993, after having received four consecutive below-

acceptable annual performance evaluations, Plaintiff was

transferred to Defendant’s Display Department as a Dis-

play Specialist. Robert Jeanneret already was a Display

Specialist when Plaintiff was transferred into the Display

Department.

App. 24

Sometime between June 1994 and December 15, 1994

Defendant proposed that the Display Department be

downsized. The staff for the department was to be

reduced from two full-time Display Specialists and a

Supervisor, to one Display Coordinator. In November

1994, Defendant offered an early retirement program to

eligible employees. Eligible employees had from Novem-

ber 15, 1994 until January 3, 1995 to consider the pro-

gram. Plaintiff was an eligible employee, but chose not to

take early retirement under the program.

On January 4, 1995 the staff of the Display Depart-

ment was told about the restructuring. On or about Janu-

ary 26, 1995, the Display Coordinator position was

posted. Plaintiff, Jeanneret, and a third candidate applied

for, and were interviewed for, the position. A panel of

three rated each of the applicants on nine factors. Jean-

neret received a rating of 136, Plaintiff received 93, the

third candidate received 92. Jeanneret was chosen for the

position.

DISCUSSION

Summary judgment only is proper when “the plead-

ings, depositions, answers to interrogatories, and admis-

sions on file, together with the affidavits, if any, show

that there is no genuine issue as to any material fact and

that the moving party is entitled to a judgment as a

matter of law.” Fed. R. Civ. P. 56(c). Where supporting or

opposing affidavits are used, the

affidavits shall be made on personal knowledge,

shall set forth such facts as would be admissible

in evidence, and shall show affirmatively that

App. 25

the affiant is competent to testify to the matters

stated therein. Sworn or certified copies of all

papers or parts thereof referred to in an affidavit

shall be attached thereto or served therewith.

Fed. R. Civ. P. 56(e). Because the procedure deprives the

parties of a trial on the issues, the court must be careful to

ensure that only those claims for which there is no need

for a factual determination as to any material fact are

disposed of by summary judgment. Celotex Corp. v. Cat-

rett, 477 U.S. 317 (1986).

In addition, a court evaluating a summary judgment

motion must view the evidence in the light most favor-

able to the non-movant. Samples v. City of Atlanta, 846 F.2d

1328, 1330 (11th Cir. 1988); Tippens v. Celotex Corp., 805

F.2d 949, 953 (11th Cir. 1986), reh’g denied, 815 F.2d 66

(11th Cir. 1987). To survive a motion for summary judg-

ment, the non-moving party need only present evidence

from which the trier of fact might return a verdict in his

favor. Samples, 846 F.2d at 1330. However, Rule 56, “[b]y

its very terms, . . . provides that the mere existence of

some alleged factual dispute between the parties will not

defeat an otherwise properly supported motion for sum-

mary judgment; the requirement is that there be no genu-

ine issue of material fact.” Anderson v. Liberty Lobby, Inc.,

477 U.S. 242, 247-8 (1986) (emphasis in original). The

materiality of facts is governed by the substantive law. Id.

at 248. A dispute is genuine if the evidence is such that

the factual issues “may reasonably be resolved in favor of

either party.” Id. at 250.

Consideration of a summary judgment motion does

not lessen the burden on the non-moving party. The non-

moving party still bears the burden of coming forth with

App. 26

sufficient evidence on each element that must be proved.

Earley v. Champion Int'l Corp., 907 F.2d 1077, 1080 (11th

Cir. 1990) (emphasis in original); see Celotex, 477 US. at

322-23. “If on any part of the prima facie case there wouic

be insufficient evidence to require submission of the case

to the jury, [the court] must... grant. . . summary

judgment for the defendant.” Earley, 907 F.2d at 1080

(citations omitted). In Earley, the Eleventh Circuit further

emphasized:

The mere existence of a scintilla of evidence in

support of the plaintiff’s position will be insuffi-

cient; there must be evidence on which the jury

could reasonably find for the plaintiff. . . . Rule

56(c) mandates the entry of summary judgment

... against a party who fails to make a showing

sufficient to establish the existence of an ele-

ment essential to that party’s case. . . . In such

circumstances, there can be no genuine issue of

material fact, since a complete failure of proof

concerning an essential element of the non-mov-

ing party’s case necessarily renders all other

facts immaterial. . . . If the evidence is merely

colorable, or is not significantly probative, sum-

mary judgment may be granted.

Id. (emphasis in original) (citations omitted).

In ruling on a motion for summary judgment, a court

“must evaluate the evidence in light of the proper stan-

dard of proof. In a discrimination case, the plaintiff bears

the ultimate burden of proving discriminatory treatment

by a preponderance of the evidence.” Rollins v. TechSouth,

Inc., 833 F.2d 1525, 1528 (11th Cir. 1987) (citations omit-

ted). “Summary judgments for defendants are not rare in

App. 27

employment discrimination cases.” Earley, 907 F.2d at

1081 (citations omitted).

As a preliminary matter, based on Plaintiffs’ repre-

sentations, Plaintiffs’ claims against Defendants Curry

and Miller are dismissed with prejudice. Moreover, Plain-

tiff has abandoned his claims for breach of contract,

intentional and negligent infliction of emotional distress

and retaliatory discharge, by failing to respond to Defen-

dant’s motion for summary judgment on these issues.

Because Plaintiff’s state law claims have been abandoned,

Plaintiff Ellen Jocile Turlington’s claim for loss of consor-

tium also is dismissed. Godby v. Electrolux Corp., 1994 U.S.

Dist. LEXIS 10760, at * 5 (N.D. Ga. 1994).

The only matters remaining, therefore, are Plaintiff's

various theories of disparate treatment based on age,

under the Age Discrimination in Employment Act of

1967, 29 U.S.C. §§ 621, et seq. (“ADEA”)

First, given the date Plaintiff filed a charge of dis-

crimination with the Equal Employment Opportunity

Commission, Defendant correctly points out that this

Court only can consider events occurring in June 1994 or

later. 29 U.S.C. § 626(d)(1).

Second, Plaintiff seemingly seeks to prove, through

indirect evidence, that he was denied the Display Coor-

dinator position in violation of the ADEA. When a plain-

tiff attempts to prove discriminatory intent by indirect

evidence under the ADEA, the plaintiff has the burden of

presenting a prima facie case.’ In order to present a prima

1 The only arguable direct evidence of discrimination

submitted by Plaintiff is Plaintiff's claim that Mr. Curry stated

App. 28

facie case, where a plaintiff did not receive an available

position, a plaintiff generally must show: (1) there was a

position available, (2) the plaintiff is a member of a

protected class, (3) the plaintiff is qualified for and

applied for the promotion, (4) the plaintiff was rejected,

(5) a person outside of the plaintiff’s class with equal or

lesser qualifications was promoted, or the employer con-

tinued to seek applicants after the plaintiff was rejected

for the position. Roberts v. Gadsden Memorial Hospital, 835

F.2d 793, 796 (11th Cir. 1988).

If the plaintiff presents a prima facie case the defen-

dant must then articulate a legitimate, non-discrimina-

tory reason for the alleged discriminatory action in order

to avoid liability. If the defendant carries this burden, the

plaintiff then has the opportunity to prove, by a prepon-

derance of the evidence, that the reasons offered by the

defendant were a mere pretext for discrimination.

McDonnell Douglas Corp. v. Green, 93 S.Ct. 1817 (1973).

In the present case, Plaintiff established Defendant

had a Display Coordinator position available, Plaintiff's

age places him in a protected class, and Plaintiff applied

for the available position. The Court finds there is a

genuine issue of material fact as to whether Plaintiff was

qualified for the position. There is no dispute that Plain-

tiff did not receive the position, and instead, Jeanneret, an

employee outside of the protected class, received the

position.

“older people tended not to pick upon [sic] on new things.”

This, by itself, however, does not constitute direct evidence of

discrimination. Thus, the Court focuses on indirect evidence.

App. 29

Plaintiff, however, did not meet his burden to estab-

lish a prima facie case because the undisputed evidence

shows that a three-person panel deemed Jeanneret to be

more qualified than Plaintiff. Plaintiff does not contend

that he was as, or better, qualified than Jeanneret. Indeed,

in his brief he states that Jeanneret who had five (5) years

experience in the Display Department “was the obvious

choice over the Plaintiff to get the job.”

Third, Plaintiff claims Defendant’s evaluation and

training systems are discriminatory against older

workers. The evaluations to which Plaintiff refers in con-

nection with this allegation, however, were done prior to

June 1994. Similarly, the denial of training about which

Plaintiff complains occurred between 1990 and 1993.

Under certain circumstances, allegedly discrimina-

tory yet unchallenged behavior, outside of the relevant

limitations period, may buttress an ADEA claim if future

employment decisions are based on the discriminatory

behavior. The Court finds that this is not such a circum-

stance. Indeed, Plaintiff has failed to present sufficient

evidence in support of his assertion that the evaluation

and training systems were discriminatory.

Finally, Plaintiff seems to argue that summary judg-

ment is inappropriate if Defendant’s decision to down-

size the Display Department was a result of Plaintiff’s

decision not to accept early retirement. The Court agrees.

However, it appears from Defendant’s evidence that the

proposal to downsize was made no later than December

15, 1994, and the final decision to downsize was made

sometime between December 15, 1994 and January 4,

1995. While Defendant does not state the precise date that

App. 30

the final decision was made, Plaintiff has presented noth-

ing to rebut Defendant’s evidence that the decision to

downsize was unrelated to Plaintiff’s decision not to take

early retirement.

Defendants’ Motion for Summary Judgment is

GRANTED.

CONCLUSION

Defendants’ Motion for Summary Judgment is

GRANTED. [16-1] Plaintiff’s Request for Extension of

Time to Respond to Defendants’ Motion for Summary

Judgment is GRANTED. [19-1]

IT IS SO ORDERED this 27th day of Nov, 1996.

/s/ Clarence Cooper

CLARENCE COOPER

UNITED STATES

DISTRICT JUDGE

(entered on Docket Nov. 29, 1996)

App. 31

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

No. 97-8071

BILLY JOE TURLINGTON,

ELLEN JOCILE

TURLINGTON,

versus Plaintiffs-Appellants,

ATLANTA GAS

LIGHT COMPANY,

RANDY CURRY, et al,

Defendants-Appellees.

On Appeal from the United States District Court

for the Northern District of Georgia

ON PETITION(S) FOR REHEARING AND

SUGGESTION(S) OF REHEARING EN BANC

(Opinion __, 11th Cir.,

Maio Sees

(Filed May 1, 1998)

Before: BIRCH, Circuit Judge, HILL and KRAVITCH,

Senior Circuit Judges.

App. 32

PER CURIAM:

The Petition(s) for Rehearing are DENIED and no mem-

ber of this panel nor other Judge in regular active service

on the Court having requested that the Court be polled

on rehearing en banc (Rule 35, Federal Rules of Appellate

Procedure; Eleventh Circuit Rule 35-5), the Suggestion(s)

of Rehearing En Banc are DENIED.

ENTERED FOR THE COURT:

/s/ Phyllis Kravitch

SENIOR UNITED STATES

CIRCUIT JUDGE

ORD-42

(6/95)

App. 33

STATUTORY PROVISION

Age Discrimination in Employment Act

29 U.S.C. §626(d)(1):

No civil action may be commenced by an individual

under this section until 60 days after a charge alleging

unlawful discrimination has been filed with the Equal

Employment Opportunity Commission. Such a charge

shall be filed -

(1) within 180 days after the alleged unlawful

practice occurred;