Petition for Writ of Certiorari — Jett v. Washington County School Board

Supreme Court, U.S

| FILF?

001852 JUN 12 2001

IN THE

Supreme Cort of the Wnt Se

October Term, 2001

Petitioner,

WASHINGTON COUNTY SCHOOL BOARD,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

Carolyn D. Cummings

Cummings, Hobbs & Wallace, P.A.

462 W. Brevard Street

Tallahassee, Florida 32301

Telephone No.: (850) 224-3730

Facsimile: (850) 224-220?

Counsel for Petitioner

i

QUESTIONS PRESENTED FOR REVIEW

Whether the demotion and reduction in salary from a

twenty-seven (27) year secretarial position to a Teacher's Aide

position, allow the demoted secretary to resurrect time barred

claims of disparate treatment under the continuing violation

theory, that began five years earlier when her secretarial duties

were replaced with Teacher's Aide duties?

Whether the time limitation as set forth in 42 U.S.C. §

2000e-5(e) is satisfied, sufficient to invoke the continuing

violation theory, if at least one unlawful employment practice

occurred within 300 days of the filing of a charge of

discrimination.

Whether the applicability of a continuing violation, in

the absence of substantive law, is a factual determination to be

made by the jury.

Whether, after a jury verdict for the Plaintiff in a race

discrimination case, it proper for the Appellant Court to review

whether the Plaintiff established a prima facie case and reverse

the jury verdict on that basis.

ii

LIST OF PARTIES

ne eT) Se

The following is a list of all parties to the proceedings

in the Court below, as required by Rule 24.1 (b) of the Rules of

the Supreme Court of the United States.

3 Marvis Jett, Plaintiff/Appellee;

2. Washington County School Board,

Defendants/Appellant;

3. Carolyn Davis Cummings, Attorney |

for the Plaintiff/Appellee; and

4. William R. Mabile, III, Attorney |

for the Defendant/Appellant.

iii

TABLE OF CONTENTS

QUESTIONS PRESENTED .........0...1.2.c.csceccscsesesese

oe SE re

REASONS FOR GRANTING THE PETITION

L This court should grant certiorari since

the decision below demonstrates confusion and

lack of uniformity among the circuits regarding

the application of the continuing violation

theory and the elements necessary to

successfully challenge ongoing discriminatory

policies and practices that have a nexus to

violations within the charge filing

et eile aisst irre iectntidaneniibiaslanseaciatns’

IL. Certiorari should be granted because

the panel's reversal of the jury verdict on the

grounds that a prima facie case was not

iv

Page —

established, with regards to the commiserate

salary policy, is inconsistent with the teachings

of this court and with the approach of other

circuits that consider the totality of the

ait nscehikchatisiosihinatasopiiatchnpacunncecaskiesséiens 13

TIO otk nosractvinvcscharsieaniciddinnicalecabeneatente 19

EE UR. scsdenscrecdictctinsdicnseneansehasinetahaneaedona 1A

ae AE) PETRI SB

v

TABLE OF AUTHORITIES

Cases: Page

Anderson v. Reno,

190 F. 3d 930, 936 (9" 1999) ooo 10

Ashley v. Boyle's Famous Corned Beef,

66 F. 3d 164 (8° Cir. 1995) ooo ccccccccccseesce 11

Beall v. Abbott Laboratories,

130 F. 3d 614, 621 (4" Cir. 1997) 0... 11

Berry v. Board of Supervisors of L.S.U.,

715 F. 2d 971, 981 (5" Cir. 1983), cert.

denied, U.S.___, 107 S. Ct. 232, 93

L. Ed. 2d 158 (1986)...000......cccccccccccccosccseseseees. 9,10

Bibeau v. Pacific Northwest Research Foundation, Inc.,

188 F. 3d 1105, (9" Cir. 1999) ooo ccccscecssee. 16

Borden, Inc., v. Morton's Market, Inc.,

120 F. 3d, amended in part 211 F. 3d 1224,

(11" Cir. 1999), cert. denied, 120 S. Ct. 2006,

nD 16

Cabiness v. YKK (USA), Inc.,

859 F. Supp. 582, 586 (M.D. Ga. 1994), affd,

98 F. 3d 1354 (11 Cir. 1994) ooo. 9

Carter v. West Publishing Company,

225 F. 3d 1258, 1263 (11" Cir. 2000).......... 9

Deffenbaugh-Williams v. Walmart Stores, Inc.,

156 F. 3d 581, 587 (5" Cir. 1998) .................. 18

vi

Page

Delaware State College v. Ricks,

449 US. 250, 258, 101 S. Ct. 498, 66 L.Ed.

26 GRE CUIES «.. .cccnccasasenaeeaa 9

DeNovellis v. Shalala,

124 F. 3d 298, 307 (1" Cir. 1997) oo, 11

Draper v. Coeur Rochester, Inc.,

147 F. 3d 1104, 1108-11 (9" Cir. 1998) ......... 10,11

Fielder v. UAL Corp.,

218 F. 3d 973, 987-88 (9" Cir. 2000) .............. 10

Galloway v. General Motors,

78 F. 3d 1164, 1166 (7" Cir. 1996) 0... 14

Goldman v. Bequai, 19 F. 3d 666,

305 U.S. App. D.C. 227 (1994) oo... 16

Kline v. City of Kansas City,

175 F. 3d 660 (8 Cir. 1999) oon 11

Kovacevich v. Kent State University,

224 F. 3d 806 (6" Cir. 2000) ooo... oecccccccccceeees 12,18

Maniccia v. Brown,

171 F. 3d 1364, 1370 (11 Cir. 1999) 0000... 15

Mantandon v. Farmland Indus.,

116 F. 3d 355, 359 (8 Cir. 1997) oo. 15

Merrill v. Southern Methodist University,

806 F. 2d 600, 605 (5® Cir. 1986) ooo... 14

Mitchell v. Baldridge,

759 F. 2d, 80, 245 U.S. App. D.C. 60 (1985)... 18

i

vii

Page

O'Loghiin v. County of Orange,

229 F. 3d 871 (9 Cir. 2000) ooo coca. 10

O'Rourke v. City of Providence,

235 F. 3d 713, 731 (1" Cir. 2001) oo... 11,14

Place v. Abbott Laboratories,

215 F. 3d 803 (7™ Cir. 2000) ooo. eeccccccccceeees 12

Reeves v. Sanderson Plumbing Prods., Inc.,

530 U.S. 133, 120 S. Ct. 2097,

147 L. Ed. 26 105 (2000) ........................... 16, 17,18

Robbins v. Jefferson County School District,

186 F. 3d 1253, 1257 (10" Cir. 1999) 0... 9

Roberts v. Gadsden Memorial Hospital,

835 F. 2d 793 (11™ Cir. 1988) oo. 9

Ross v. Buckeye Cellulose,

980 F. 2d 648 (11 Cir. 1993) oo. 9

Rush v. Scott Specialty Gases, Inc.,

113 F. 3d 476, 481 (3% Cir. 1997) oo. 10

St. Mary's Honor Ctr. v. Hicks,

TS IIE dcnithinsteannicsictinsistinshahigtadeliniibicentcas 17,18

Sturniolo v. Sheaffer, Eaton, inc.,

15 F. 3d 1023 (11™ Cir. 1994) oo. 14

United Air Lines, Inc. v. Evans,

431 U.S. 553, 97 S. Ct. 1885, 52 L. Ed. 2d 571

RPI sre MO te ele 8, 13,14

viii

Page

United States Postal Service Board v. Aikens,

460 U.S. 711, 714-715, 103 S. Ct. 1478, 1481-

1482, 75 L. Ed. 2d 403 (1983) 0.000... 16,18

Zipes v. Trans World Airlines, Inc.,

455 U.S. 385, 102 S. Ct. 1127, 71 L. Ed. 2d 234

PII: -dcniienshienhssitcinsniiaticacetidipaiidatsicadiiehbianiuahensasn 14

STATUTES AND RULES

Fe ics EE TRIP GD tctesinenennsoceceedenantlsatiinnsnie |

42 U.S.C. § 2000e-2(a)(1) et seq., .............. scdduaaiiabsanioe 1,2

a a ace e aE siatitgriiniclnininniceieninilinnninilennescapianenin 1,2,8

MISCELLANEOUS

Lindermann and Grossman, Employment Discrimination

Law, Third Edition, Volume II, Continuing Violations,

SO, FPN IUUINED sccisascithintaashecingiosibateadessaiecteuielansdas 12

Lisa S. Tsai, Continuing Confusion: The Application of

the Continuing Violation Doctrine to Sexual Harassment

Law, 79 Tex. L. Rev. 531, $32, (2000)........................... 12

Philip J. Pfeiffer, Continuing Violations, Employment

Discrimination Law," Third meats pp. 770-777

FEELS EME a SAS SPU e ene Oe 12

Robert J. Reid, Comments: Confusion in the Sixth

Circuit: The Application of the Continuing Violation

Doctrine to Employment Discrimination, University of

Cincinnati, 60 U. Cim. L. Rev. 1335, 1345 (1992)........ 13

eT NAT R. rE

IN YHE

Supreme Court of the United States

October Term, 2001

No.

ee

MAR VIS JETT,

Petitioner,

VS.

WASHINGTON COUNTY SCHOOL BOARD,

Respondent.

ON PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

Petitioner Marvis Jett, (hereinafter Jett) respectfully prays

that a writ of certiorari issue to review the judgment of the United

States Court of Appeals for the Eleventh Circuit entered February 1,

2001 in Case No. 00-11554, Marvis Jett v. Washington County

School Board.

OPINIONS BELOW

The opinion of the United States Court of Appeals for the

Eleventh Circuit is unreported. It is attached as an appendix, p. Al.

JURISDICTION

This Court has jurisdiction to review the decision of the

Court of Appeals entered February 1, 2001. Petitioner's petition for

rehearing with suggestion for rehearing en banc was denied March

14, 2001, a copy of which is attached at Appendix, p. Al3.

Jurisdiction is conferred upon this Court pursuant to 28 U.S.C.

Section 1254 (1).

STATUTORY PROVISION INVOLVED

The statute construed is Title VII of the Civil Rights Act of

1964, 42 U.S.C. § 2000e-2(a)(1), et seq., which says: "It shall be

unlawful practice for an employer ... to discriminate against any

individual with respect to his compensation, terms, conditions, or

privileges of employment, because of such individual's race, color,

religion, sex or national origin; and 42 U.S.C. § 2000e-5(e) which

provides that a charge of discrimination must be filed within 300

days after the alleged unlawful employment practice occurred. The

pertinent sections of the statute are set forth at Appendix, p. A 14.

STATEMENT

A jury in the Northern District of Florida found that Jett

was transferred and demoted because of her race. Pursuant to the

jury verdict, the District Court for the Northern District of Florida

entered an Amended Judgment dated February 25, 2000. A copy of

the judgment is appended hereto at Appendix, p. Al.

The Unites States Court of Appeals for the Eleventh Circuit

reversed, and held: (1) that the Plaintiff's claim with respect to her

job transfers was barred by the statute of limitations because she did

not file a timely charge of discrimination; and (2) the Plaintiff

failed to establish a prima facie case of discrimination with respect

to the commensurate salary policy. The opinion of the Court of

Appeals which reversed the jury verdict is dated February 1, 2001

and is unpublished. A copy of the opinion is attached hereto at

Appendix, p. Al.

(FACTS)

This is an action brought under Title VII of the Civil Rights

Act of 1964, as amended, 42 U.S.C. § 2000e-5S(e), et seq., by

Petitioner, Marvis Jett (hereinafter Jett) to recover seniority, back

pay, loss benefits and for pain, suffering and emotional distress. Jett

had worked for Respondent, Washington County School Board,

(hereinafter School Board), for twenty-two (22) years as the only

ciate ata inia Iceaet ie cate eR OTR ANN

SADIE HORT PTI PRON GRR ANE NMEA OEE Mee oc eOR

black secretary in the District Office and with more seniority than

any of the other eight secretaries in the District Office, until she was

selected to be moved out of the office in 1989, allegedly because of

reassignment of duties and because of the need for fewer secretaries.

Thereafter, Jett was demoted to a Teachers’ Aide position in 1994,

at age fifty-five (55). From 1989 to 1994, Jett was required to work

in menial positions performing the task of a Teachers’ Aide. In 1990

and 1992 she was transferred from one menial task in a hostile

environment to another menial task. During the period of being

shifted from place to place, Jett remained a secretary in title, salary

and benefits until July 1994, when she was ultimately demoted. The

School Board claimed Jett was demoted because of the adoption of

a new policy that gave it the authority to pay employees

commensurate with their job duties and responsibilities. '

In 1989, after the School Board promised not to reduce her

salary to a Teacher's Aide salary but to place her in a lateral transfer

status,” Jett did not file a charge with the Equal Employment

Opportunity Commission or with any other state agency protesting

her removal from the District Office. _Jett’s efforts to be returned

to a secretarial position included speaking with two different School

Superintendents on numerous occasions doing the period from 1989

to 1994, and both represented that they were looking out for her and

would consider placing her back in a secretarial position when a

vacancy occurred.

At the time the policy was adopted, the School Board knew

that Jett would suffer a salary reduction and was aware that she was

the only secretary who was performing the duties of a Teacher’s

Aide. Before the effective date of the policy, Jett appeared before

the School Board and requested that her salary not be reduced, as the

School Board had promised to maintain her secretarial salary as a

lateral transfer, five years earlier. Jett was not successful. When the

policy became effective, Jett’s salary was reduced from

"In July 1993, the School Board adopted a policy, effective July 1, 1994, who

purportedly gave it the authority to pay employees who had been demoted or

transferred, commensurate with the position to which they had been demoted or

transferred to.

” The policy utilized by the Respondent at the time defined a lateral transfer of

non-instructional/support personnel as the movement from one position to

another which does not have a subsequent change in salary.

a i

4

approximately $17, 881 annually to $12,171 annually. No other

secretary was immediately affected by the policy.

On July 24, 1994, approximately five years after her

involuntary removal from the District Office, Jett filed a charge of

discrimination pursuant to Title VII of the Civil Rights Act of 1964,

as amended. Jett complained that she was demoted and

discriminated against in the terms and conditions of employment.

On July 14, 1998, the Equal Employment Opportunity Commission |

issued Jett a "right to sue" letter and on October 13, 1998, this :

lawsuit was filed in the Fourteenth Judicial Circuit Court in

Washington County, Florida. On January 20, 1998, the School

Board filed a Notice of Removal of the complaint from State Court

to the United States District Court for the Northern District of

Florida.

On June 19, 1999, Jett filed an amended complaint in

which she alleged to have been continuously discriminated against

on the basis of race, when the School Board removed her from the ;

District Office in 1989 and required her to perform duties of various

- lesser positions in hostile environments, while no other white 1

secretaries were similarly treated. Jett's complaint also alleged that

the School Board was aware that she was the only secretary who had

been reassigned to perform duties of a position with lower pay when

the salary policy was adopted.

On June 23, 1999 the School Board moved for Summary

Judgment, taking among other positions that Jett did not file a

timely charge of discrimination and that she could not establish a

prima facie case with regards to the application of the salary policy.

In response to the Summary Judgment motion, Jett asserted

that the School Board carried on a discriminatory employment i

practice against her on the basis of race beginning in 1989, which

was ongoing and continuous and that her complaint should be

deemed timely because there was a substantial nexus between the

School Board's assigning her to perform Teacher's Aide duties

beginning in 1989, the subsequent transfers and her ultimate

demotion to the Teacher's Aide position in 1994.

Jett raised equitable estoppel and equitable tolling as other

relevant principles for tolling the statute of limitations. Jett alleged

she was induced to her detriment, not to file a complaint of

discrimination by the Respondent, when in 1989, she was promised

that he salary would remain at the same level. Jett urged that even

a a ee

while being subjected to uncertainty about job assignments, it was

too much to expect her to file an action during the period that she

believed she was secure in her title and salary. On October 8, 1999

the District Court entered an Order denying the School Board’s

Motion for Summary Judgment.

At trial, Jett established that from 1989 to 1994, the School

Board voted continuously annually to assign her to perform

Teacher's Aide duties and responsibilities, while no other white

secretaries were assigned such duties or voted on annually. Jett also

introduced evidence which questioned whether the authority to

adjust salaries commensurate with duties and responsibilities was the

reason behind the adoption of the 1994 policy, because the School

Board already had the authority and was exercising the authority to

adjust salaries commensurate with duties and responsibilities, prior

to the adoption of the policy. The unrefuted evidence at trial showed

that other School Board employees had been demoted for cause,

with salary reductions to their demoted positions in 1989 and 1992.

The School Board's Representative also testified that school

principals had been transferred to other administrative positions with

salary adjustments, prior to the effective date of the 1994 policy.

The evidence also showed that after the adoption of the policy, there

was at least one white School Board employee who did not suffer

a salary reduction after being demoted to a lower position.

On October 20, 1999 the jury returned a verdict for Jett and

awarded her a total of $134,000 which included $34,000 for back

pay, $14,000 for lost benefits and $86,000 for pain and suffering.

On appeal to the United States Court of Appeal for the

Eleventh Circuit, the School Board took the position that the District

Court erred by not granting its summary judgment motion and its

motion for judgment notwithstanding the verdict, regarding Jett's

transfers, because neither the continuous violation theory nor

equitable principles saved Jett's time-barred claims. The School

Board argued the lack of a substantial nexus between Jett’s transfers

and the salary policy sufficient to trigger the continuous violation

theory, and furthermore that the salary policy did not make

permanent any allegedly discriminatory act concerning Jett's

transfers.

Nevertheless, the School Board agreed that Jett’s charge was

timely regarding the salary policy but argued that she had not

established a prima facie case of racial discrimination because

sila as

6

similarly situated white persons were also affected by the salary

policy.

Jett's position before the Court of Appeals was the same as

had been advanced before the District Court; i.e. the School Board's

summary judgment and judgment notwithstanding the verdict

motions were properly denied because Jett established equitable

reasons for tolling the statute of limitations. The School Board was

estopped from raising the statute of limitations as a bar because the

1989 decision not to reduce her salary was designed to prevent her

from filing a charge of discrimination. She was actively misled with

the maintenance of her secretarial salary for five (5) years and with

promises of being placed back into a secretarial position during the

same period that the School Board maintained her secretarial salary.

Furthermore, the elements of similarity, frequency and

permanency were sufficiently present to trigger the continuing

violation theory and thus, provide the necessary nexus between her

time-barred transfers to Teachers’ Aide duties and her timely charge

regarding being demoted to the Teacher's Aide position. Indeed, Jett

advanced the position that the salary policy and her ultimate

demotion made permanent the School Board's discriminatory

actions against her for five (5) years which mandated annually that

she perform the duties of a Teacher's Aide. Additionally, Jett

emphasized that a prima facie case of disparate treatment as well as

pretext had been established with regards to the salary policy

because (1) the School Board admitted that of the six white

employees it advanced to demonstrate reductions due to the salary

policy just as Jett, that all of them could not attribute their salary

reductions to the policy in question; and (2) there was at least one

white employee who was demoted to a lesser position but suffered

no salary reduction.’

On February 1, 2001, a panel of three judges from the

Court of Appeals for the Eleventh Circuit reversed the jury verdict

and ordered dismissal of Jett's case with prejudice. The panel

concluded with regards to equitable tolling and equitable estoppel:

"The fact that Jett backed off from her threat to file a charge of

discrimination after being allowed to keep her salary in no way

> The jury heard testimony that one white male, Jerry Tyre's salary remained the

same after he was demoted from Principal, a higher paying jc, to director of

Transportation. (Doc. 84 pg. 16-17).

means she was mislead about her legal rights or ability to file a

charge....[t]his Court determines that the limitations period was not

tolled for this entire: period and the charge filed on July 27, 1994

was untimely with respects to her demotion and transfers.”

Thereafter, the court did not address Jett's "continuous violation”

claim of being a victim of the School Board's past, current and

continuing discriminatory practices against her nor did it address her

claims that the past discrimination had been perpetuated by the

adoption of the facially neutral current salary policy.

The panel also found that the district judge erred in holding

that Jett had proven the elements of a prima facie case, concluding

that "[s}he failed to show that the Board treated similarly situated

white employees differently. Further, the panel opined: "Even if Jett

had proven the elements of a prima facie case, the district judge was

still required to grant summary judgment (or later judgment as a

matter of law) on Jett's commensurate salary claim since the Board

articulated a legitimate nondiscriminatory reason for its adoption of

the policy and Jett did not show that the reason was pretexual."

Jett petitioned the Court for rehearing and rehearing en banc

on February 22, 2001. That petition was rejected on March 14,

2001. Jett now brings this petition for a writ of certiorari within

ninety (90) days from the date the request for rehearing was denied.

“The pane! made a factual error when it deemed Jett to have been demoted

when she was transferred in 1989, when her demotion was effective July 1,

1994, pursuant to a vote of the Board July, 1993.

REASONS THE WRIT SHOULD BE GRANTED

I. THIS COURT SHOULD GRANT CERTIORARI

SINCE THE DECISION BELOW DEMONSTRATES

CONFUSION AND LACK OF UNIFORMITY AMONG THE

CIRCUITS REGARDING THE APPLICATION OF THE

CONTINUING VIOLATION THEORY AND THE

ELEMENTS NECESSARY TO SUCCESSFULLY

CHALLENGE ONGOING DISCRIMINATORY POLICIES

AND PRACTICES THAT HAVE A NEXUS TO

VIOLATIONS WITHIN THE CHARGE FILING PERIOD.

The continuous violations theory is a judicially created

theory that suspends the commencement of the applicable charge

filing period if a defendant's violation of the law is deemed to be

continuing in nature. Application of the theory allows a Plaintiff to

reach back and get relief for actions of discrimination that occurred

outside the statute of limitations period by linking it as one

continuous act, with a discriminatory act that took place within the

limitation period. United Air Lines, Inc. v. Evans, 431 U.S. 553, 97

S. Ct. 1885, 52 L. Ed. 2d 571 (1977).

Section 2000e-5 (eX 1) (1997) of Title 42 allows a charging

party 300 days from the date of the alleged unlawful practice to file

a charge with the Equal Employment Opportunity Commission,

when the party has also timely filed with a proper state agency. The

Eleventh Circuit determined that since Jett was transferred and

demoted in 1989, her charge filed with the state agency on July 27,

1994, just fifty-five (55) days after the School Board notified her in

writing of her reduction to a Teacher's Aide salary, was untimely.

By reaching this conclusion, the Eleventh Circuit totally ignored the

facts and documents in the record, erroneously concluded that Jett

failed to timely file and failed to consider the discriminatory action

of reducing her salary by thousands of dollars, which action was

clearly within the charge filing period.

With regards to facts necessary to sustain a charge of

* The School Board letter dated June 2, 1994, which notified Jett of her demotion,

salary reduction, loss of annual leave and reduction in annual work days to a 196

day contract was part of Jett's evidence that was admitted at trial, and is included

in the Appendix, p. A16.

ew Ee ee ome

continuing violation that would address present effects of past

discrimination, this Court has observed that the emphasis should not

be placed on mere continuity; the critical question is whether any

present violation exists: "[t]}he proper focus is upon the time of the

discriminatory acts, not upon the time at which the consequences of

the acts became most painful....the emphasis is not upon the effects

of earlier decisions; rather, it is upon whether any present violation

exists." Delaware State College v. Ricks, 449 U.S. 250, 258, 101 S.

Ct. 498, 66 L. Ed. 2d. 431 (1980), citing United Air Lines, Inc. v.

Evans, 431 U.S. 553, 97S. Ct. 1885, 52 L. Ed. 2d 571 (1977).

In determining whether a discriminatory employment

practice constitutes a continuing violation, the Eleventh Circuit

distinguishes between the present consequence of a one time

violation, which does not extend the limitation period, and the

continuation of that violation into the present, which does. Carter v.

West Publishing Company, 225 F. 3d 1258, 1263 (11 Cir. 2000);

See also Ross v. Buckeye Cellulose, 980 F. 2d 648 (11" Cir. 1993).

Even applying the method generally observed by the Eleventh

Circuit, Jett's charge should have been deemed timely because

undisputedly, her salary reduction occurred within the 300 day

window of the charge filing date.

In other instances, some courts in the Eleventh Circuit and

the Fifth Circuit continue to determine whether the continuing

violation theory is applicable by employing a three factor analysis,

which consists of whether the alleged discriminatory acts are related

by subject matter, frequency and permanence. Roberts v. Gadsden

Memorial Hospital, 835 F. 2d 793 (11 Cir. 1988), where the three

factors were held not to be sufficiently present; See also Cabiness

v. YKK (USA), Inc., 859 F. Supp. 582, 586 (M.D. Ga. 1994), aff'd,

98 F. 3d 1354 (11 Cir. 1994).

Several other circuits agree with the Fifth Circuit and the

Eleventh Circuit that a three prong analysis is required to determine

if a continuing violation has occurred. See Robbins v. Jefferson

County School District, 186 F. 3d 1253, 1257 (10° Cir. 1999)

(stating to determine whether the alleged acts of discrimination

* The Eleventh Circuit adopted the Fifth Circuits’ continuous violation doctrine.

which employs the three prong analysis as set forth in Berry v. Board of

Supervisors of L.S.U., 715 F. 2d 971, 981 (5™ Cir. 1983), cert. denied, —__

US.___, 107 S. Ct. 232, 93 L. Ed. 2d 158 (1986).

10

constitute a continuing violation or are discrete unrelated acts we

employ a three-factor inquiry: we consider: "(i) subject matter-

whether the violations constitute the same type of discrimination; (i1)

frequency; and (iii) permanence-whether the nature of the violations

should trigger an employee's awareness of the need to assert her

rights and whether the consequences of the act would continue even

in the absence of a continuing intent to discrimmate); Rush v. Scoti

Specialty Gases, Inc. , 113 F. 3d 476, 481 (3™ Cir. 1997) (stating

we have followed Berry v. Board of Supervisors of Louisiana State

University, 715 F. 2d 971 (St" Cir. 1983), the leading case on the

continuing violation theory, where that court enumerated several

factors relevant to the determination of whether a plaintiff has

demonstrated a continuing violation).’

Other circuits continue to require a plaintiff to establish at

a minimum, that one definable incident of discrimination occurred

within the relevant filing period, to invoke the continuing violation

theory. See O'Loghlin v. County of Orange, 229 F. 3d 871 (9" Cir.

2000) (stating with regards to an ADA violation, if a discriminatory

act takes place within the limitations period and that act is "related

and similar to” acts that took place outside the limitations period, all

the related acts-including the earlier acts are actionable as part of a

continuing violation), citing to Anderson v. Reno, 190 F. 3d 930,

936 (9 1999): Fielder v. UAL Corp. 218 F. 3d 973, 987-88 (9"

Cir. 2000) and Draper v. Coeur Rochester, Inc., 147 F. 3d 1104,

1108-11 (9" Cir. 1998). In finding that the discrimination against

O'Loghlin was continuous, the Ninth Circuit suggested that a logical

and fair consequence of its application of the continuing violations

doctrine is that a defendant cannot insulate itself from liability by

engaging in a series of related violations of Title VII and then

asserting that the statute of limitations has run for the first violation

in the series. O'Loghlin, supra, 229 F. 3d 871 at 875.

Unlike the Eleventh Circuit, the Ninth Circuit opined that an

important purpose of the continuing violation doctrine is to prevent

a defendant from using its earlier illegal conduct to avoid liability

for later illegal conduct of the same sort. /d. Under the Ninth

’ The Third Circuit agreed with the District Court's determination that Rush

suffered from continuous sexual harassment, which consisted of derogatory

remarks, rude behavior, and discriminatory conduct. Rush v. Scott, 113 F. 3d

476, 483 (3™ Cir. 1997).

meme aa ne

11

Circuit's rationale, arguably Jett's claims of continuous

discrimination would have survived and yielded different results

because at least one act and the most recent act of discrimination

complained of was within the relevant time period, as sanctioned by

the Ninth Circuit.

Likewise, the Ninth Circuit further observed in Draper,

supra, that a genuine issue of material fact existed as to whether the

alleged hostile work environment continued into the relevant

limitations period under the continuing violation doctrine, and thus

precluded summary judgment on the claim. Draper v. Coeur

Rochester, Inc., 147 F. 3d at 1107. In reversing the District Court,

the Court of Appeals, reiterated that events occurring outside of the

limitations period may be considered as a basis for a discriminatory.

claim, if the events are part of an ongoing unlawful employment

practice that continues into the relevant period of limitation. /d. at

1107. See also Beall v. Abbott Laboratories, 130 F. 3d 614, 621 (4*

Cir. 1997) (stating the continuing violation theory is available only

where an actual violation has occurred within the requisite time

period); Kline v. City of Kansas City, 175 F. 3d 660 (8" Cir. 1999)

(stating a violation is continuing if it consists of an ongoing pattern

or practice of discrimination rather than an amalgamation of

discrete, isolated instances); Ashley v. Boyle's Famous Corned Beef,

66 F. 3d 164 (8 Cir. 1995) (where the District Court's dismissal of

gender discrimination and equal pay claims as time barred was

reversed, stating that an employee may challenge ongoing

discriminatory acts even if similar illegal acts could have been

challenged earlier and are thus time barred).

Some other circuits recognize two types of continuing

violations: systemic violations, which have their roots in a

discriminatory policy or practice which continues into the limitation

period and serial violations, which are composed of a number of

discriminatory acts emanating from the same discriminatory animus,

with each act constituting a separate wrong actionable under Title

Vil. DeNovellis v. Shalala, 124 F. 3d 298, 307 (1* Cir. 1997). See

also O'Rourke v. City of Providence, 235 F. 3d 713, 731 (1* Cir.

2001), (stating continuous violation is an equitable exception for

otherwise time-barred allegations but there must be some violation

within the statute of limitations period that anchors the earlier

claims). In O'Rourke, the First Circuit; reinstated the jury verdict and

sanctioned the application of the serial continuing violation doctrine

12

to cover discriminatory activity and a hostile work environment that

occurred two-and-one-half years prior to the charge of

discrimination.* See also Kovacevich v. Kent State University, 224

F. 3d 806 (6” Cir. 2000) (stating two ways to establish continuing

violations: first, if there is evidence of present discriminatory

activity and if at least one of the forbidden discriminatory acts

a plaintiff has demonstrated a long standing and over-aching policy

of discrimination).

Compare the Seventh Circuit, which observes three

different continuing violation theories. Place v. Abbott

Laboratories, 215 F. 3d 803 (7* Cir. 2000), stating "three types of

continu, violations for purposes of employment discrimination

include: where the exact day of the violation is difficult to pinpoint

because employer's decision making process takes place over period

of time; where the employer has a systematic, openly espoused

policy alleged to be discriminatory; and where the employers

discriminatory conduct is so covert that its discnmunatory character

is not immediately apparent. /d. at 808. |

Many authors and other legal commentators have also

discussed the split among the circuits regarding the necessary !

elements to invoke a continuing violation theory. See Lindermann

and Grossman, Employment Discrimination Law, Third Edition,

Volume Il, Continuing Violations, pp. 1351-1363 (1996) stating |

“unquestionably the biggest area of disagreement and arguably the |

most muddled area in all of employment discrimination law is that

of alleged continuing violation;" Philip J. Pfeiffer, Continuing

Violations, Employment Discrimination Law,” Third Edition, pp.

770-777 (2000), stating “cases addressing the continuing violations

theory as an exception to the charge-filing limitations period

continue to defy easy description or convenient categorization;” Lisa

S. Tsai, Continuing Confusion: The Application of the Continuing

Violation Doctrine to Sexual Harassment Law, 79 Tex. L. Rev. 531,

a ee ee

* In O'Rourke, the First Circuit acknowledged its adoption of the three prong

analysis first articulated by the Fifth Circuit in Berry v. Board of Supervisors,

715 F. 24 971, 981 (5 Cir. 1983). In finding a “continuing violation” of sexual |

harassment, the First Circuit distinguished between the approach to cases [

involving a single act of permanence which would act as a trigger and those

involving a series of acts, such as is gencrally found in sexual harassment cases

Id.

532, (2000), stating [t]he courts of appeals have interpreted this

seemingly straightforward doctrine in widely divergent ways,

strikingly similar cases - ultimately resulting in widespread

inconsistent application of the doctrine;" Robert J. Reid, Commenis:

Confusion in the Sixth Circuit: The Application of the Continuing

Violation Doctrine to Employment Discrimination, University of

Cincinnati, 60 U. Cin. L. Rev. 1335, 1345 (1992) stating "[t}he law

of continuing violations remains in a state of confusion among the

different circuits ... some further guidance from the United States

Supreme Court ... could provide some much needed clarity on the

question of continuing violations.”

fl. THE DECISION BELOW FAILS TO APPLY RULES OF

THIS COURT AS FORMULATED IN UNITED AIRLINES,

INC,, v. EVANS AND ZIPES V. TRANS WORLD AIRLINE,

INC.

The Eleventh Circuit's holding regarding the continuous

violation theory as applied to the facts of this case, is in direct

conflict with this Court's teachings in United Air Lines, Inc. v.

Evans, 431 U.S. 553, 97 S. Ct. 1885, 52 L. Ed. 2d 571 (1977). In

addition to the split in the circuits, this Court should accept this case

for review because the Eleventh Circuit's decision below ignores the

necessary inquiry mandated by this Court in United Air Lines, i.e.,

whether any present violations existed. Because Jett filed her charge

against present violations as well as past violations, the Eleventh

Circuit's holding below is inconsistent with United Air Lines vy.

Evans.

in United Air Lines this Court emphasized that allegations

that a present system neutral in its operation, discriminates against

victims of past discrimination is an essential component to invoke

the continuing violation theory. /d. at 555. In this case, the School

Board did not dispute that Jett had filed a timely charge of

discrimination with regards to the current salary policy nor did it

dispute that the policy adversely affected Jett and resulted in the

diminution of her salary by approximately $5,000. Yet, the Eleventh

Circuit refused to address the significance of the alleged current

violation to Jett’s claims of a continuing violation of discrimination

against her. The Eleventh Circuit erred according to the dictates of

14

United Air Lines. .

Likewise, the Eleventh Circuit's decision and that of other

circuits cannot be reconciled with the teaching of the Supreme Court

in Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 102 S. Ct.

1127, 71 L. Ed. 2d 234 (1982), with regards to the overlapping of

the statute of limitations question and the substantive law. There the

Supreme Court recognized that the doctrines of equitable estoppel

and equitable tolling excuse a claimant from having to file before it

is feasible to do so, and further observed that a civil rights statute

which provides for the judicial process to be initiated by lay persons,

should be construed to maximize the likelihood that the claimant

will receive the benefit of the law. /d. at 393-395, 102 S. Ct. at

1132-1133.

In following the Supreme Court's rationale, the First Circuit

recently observed: [I]t would be anomalous to say that for statute of

limitations purposes, a plaintiff should be on notice that she has a

discrimination claim where the substantive law says she does not

have such a claim yet. O'Rourke v. City of Providence, supra, 235

F. 3d at 732. The First Circuit also observed that where the

substantive law does not resolve when a viable claim accrues, the

issue of whether one is the victim of a continuing violation or not is

better resolved by juries, with jurors reflecting the lessons from their

own life's experiences. /d. at 732.

See also Galloway v. General Motors, 78 F. 3d 1164, 1166

(7 Cir. 1996), which followed the dictates of Zipes and in doing so

stated that "we do not want to encourage premature or precipitate

litigation.” However, at least one other circuit does not appear to

follow these principles, see Merrill v. Southern Methodist

University, 806 F. 2d 600, 605 (5" Cir. 1986), where the Court held

that the discriminatory act against the Professor occurred at the time

she was denied tenure rather than when she first perceived that a

discriminatory motive caused her to be denied tenure. /d. at 605.

While the Eleventh Circuit has indeed recognized that a

limitations period may be suspended until the facts which would

support a cause of action are apparent to a person with reasonably

prudent regard for his rights, its holding in this case falls short of

reinforcing its precedents or the Supreme Court’s principle to the

facts of this case. Sturniolo v. Sheaffer, Eaton, Inc., 15 F. 3d 1023

(11 Cir. 1994). This case involved a series of disputed facts, which

included activities by the School Board, that arguably misled Jett

|

|

;

'

i

'

15

into believing her salary was secure. There were other indications

from the School Board that it would eventually reassign her back to

the duties and responsibilities of a secretary. Admittedly, the School

Board had maintained her secretarial salary from year to year while

assigning her menial tasks and the School Board also voted every

year to continue her assignment of performing Teacher's Aide

duties. The unrefuted record evidence established that Jett did not

foresee and could not have foreseen that she would be demoted to

a Teacher's Aide position, without cause, after having worked for

over twenty-two (22) years with a good work record as a secretary.”

Jett had no control over her employment status. The Defendant

removed her from the District Office as a Secretary and the

Defendant had the authority to move her back to a secretarial

position at any time.

Additionally, the School Board's position before the District

Court and the Eleventh Circuit supports Jett's decision that

substantive law would not have supported the filing of a claim

between the period she was supposedly on a lateral transfer and the

time she suffered the actual demotion and salary reduction. On page

25 of its Initial Brief, the School Board argued in pertinent part:

"[a] lateral transfer resulting in no loss of pay,

benefits or classification does not generally

constitute an adverse employment action. ... See

generally Doe, 145 F. 3d at 1449-50. ... Maniccia

v. Brown, 171 F. 3d 1364, 1370 n. 3(11™ Cir.

1999) (noting that a lateral transfer with no loss of

pay or benefits is not an adverse employment

action); ... Maniandon v. Farm and Indus., 116 F.

3d 355, 3598" Cir. 1997) (finding allegedly

retaliatory transfer not adverse because it did not

entail change in position, title, salary or any other

aspect of his employment, no matter "how[]

unpalatable the prospect [of the transfer] may have

been to [the employee]").

” At trial, Jett testified and her personnel file substantiated that, doing the years

she worked as a Secretary she never received an adverse evaluation, while the

School Board, without documentation tried to establish some deficiencies in her

work as a secretary.

16

Hence, the panel's determination that Jett was unreasonable .

in relying on statements from two Superintendents for such a long

period, ignored the substantive law and the facts of the case as well.

The law is well settled among some Circuits including the

Eleventh Circuit, that when the facts are in dispute, a determination

of when the statute of limitations begins to run is a question of fact

for the jury. Goldman v. Bequai, 19 F. 3d 666, 305, U.S. App. D.C.

227 (1994): See also Borden, Inc., v. Morton's Market, Inc., 120 F.

3d, amended in part 211 F. 3d 1224, (11 Cir. 1999), cert. denied,

120 S. Ct. 2006, 146 L. Ed. 956 (1999); Bibeau v. Pacific

Northwest Research Foundation, Inc., 188 F. 3d 1105, (9™ Cir.

1999).

Since the facts surrounding Jett’s initial transfer, continuous

transfers, and ultimate demotion and salary reduction were in

dispute, and substantive law did not require Jett to file a charge

earlier than the one filed, the Court of Appeals’ decision usurping

the province of the jury and making a factual decision should be

reviewed by this Court.

I. CERTIORARI SHOULD BE GRANTED BECAUSE

THE PANEL'S REVERSAL OF THE JURY VERDICT ON

THE GROUNDS THAT A PRIMA FACIE CASE WAS NOT

ESTABLISHED, WITH REGARDS TO THE

COMMISERATE SALARY POLICY IS INCONSISTENT

WITH THE TEACHINGS OF THIS COURT AND WITH

THE APPROACH OF OTHER CIRCUITS THAT

CONSIDER THE TOTALITY OF THE EVIDENCE

This Court has clearly established that after a trial on the

merits, an appellate court should not focus on the analysis of

whether the elements of the prima facie case were established, but

should assess the ultimate question of discrimination vel non-

whether the defendant intentionally discriminated against the

plaintiff. United States Postal Service Board v. Aikens, 460 U.S.

711, 714-715, 103 S. Ct. 1478, 1481-1482, 75 L. Ed. 2d 403

(1983).

In Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S.

133, 120 S. Ct. 2097, 147 L. Ed. 2d 105 (2000), this Court also

reversed the Fifth Circuit's reversal of a jury verdict on two grounds:

17

(1) the Fifth Circuit had ignored the Plaintiff's evidence which

supported his prima facie case of age discrimination, and (2) the —

Fifth Circuit ignored the evidence which challenged the employers

legitimate non-discriminatory reasons for his termination. Reeves,

147 L. Ed. 2d at 119. This Court held that a jury could rely solely

on evidence of pretext to infer discrimination and further held that

a prima facie case of discrimination combined with sufficient

evidence for a reasonable fact finder to reject the legitimate non-

discriminatory reasons, is adequate to sustain a finding of liability.

Id. at 115, 121.

Secondly, this Court in Reeves addressed what a reviewing

Court should consider upon an appeal of the denial of a Rule 50(b)

motion. The Court concluded that the reviewing Court should

review the record evidence and draw all reasonable inferences in

favor of the nonmoving party, but, it may not make credibility

determinations or weigh the evidence; credibility determinations, the

weighing of the evidence, and drawing of legitimate inferences from

the facts are jury functions, not those of a judge. Jd. at 122.

In this case, the reviewing Court found that the Plaintiff had

not established a prima facie case or established pretext, when the

record in fact reveals that not only did simularly-situated whites not

suffer a pay reduction from the policy in question but also that the

Defendant exercised authority to adjust salaries commensurate with

job duties and responsibilities prior to the adoption of the policy in

1994. Evidence that there were white employees who suffered

demotion, but not salary reduction, established disparate treatment

and therefore the Plaintiff's prima facie case. Likewise, evidence

that the Defendant exercised the authority to adjust salaries before

the effective date of the policy clearly cast doubt upon the

Defendants "business necessity" reasons for adoption of the policy.

Viewing all the evidence most favorable to Jett, a reasonable jury

could believe that Jett was discriminated against and a reasonable

jury found that Jett had been discriminated against. The jury

weighed this evidence properly.

In St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502 (1993), this

Court held that disbelief of the legitimate nondiscriminatory reasons

set forth by the employer, coupled with the Plaintiff's prima facie

case, is sufficient to permit the fact finder to infer discrimination and

to support a jury finding of discrimination. St Mary's Honor Ctr.,

509 U.S. at 508-11. Further, the Court observed that a Plaintiff is

18

entitled to survive summary judgment and judgment as a matter of

law, when sufficient evidence exists to demonstrate the existence of .

a genuine issue of fact as to the truth of the employer's proffered

reasons. Jd. The Eleventh Circuit's panel decision in this case,

contravenes this Courts clear directions in St. Mary's Honor Ctr. as

well.

The Eleventh Circuit's holding is also in direct conflict with

the recent holding of the Sixth Circuit in Kovacevich v. Kent State

University, supra, at 224 F. 3d 806. In an almost identical

procedural situation, the Sixth Circuit reversed the decision of the

District Court, that had determined after a jury trial on the merits,

that the claimant failed to establish a prima facie case on Title VII

and Equal Protection Act claims. /d. at 822. There the Court held

that as a matter of law the District Court erred and stressed that the

teachings of Aikens, supra, with regards to the role played by the

prima facie case apply to both district and appellate court reviews of

verdicts, i.e. the totality of the evidence should be considered in a

light most favorable to the plaintiff to determine if reasonable jurors

could find discrimination. /d. at 827. The entry of judgment as a

matter of law is always precluded once a Plaintiff has established a

prima facie case and has shown sufficient evidence to allow a fact-

finder to disbelieve an employer's proffered explanation for its

actions. See also Mitchell v. Baldridge, 759 F. 2d, 80, 245 U.S.

App. D.C. 60 (1985) (stating once a Title VII case has been fully

tried on the merits, whether prima facie case was established is no

longer relevant); and Deffenbaugh-Williams v. Wal-Mart Stores,

Inc., 156 F. 3d 581, 587 (5" Cir. 1998) (stating after a case has been

fully tried on the merits, the inquiry of appellate courts becomes

whether the record contains sufficient evidence to support the jury's

conclusion).

The Eleventh Circuit's disregard for Reeves and St. Mary's

Honor Ctr. as well as its conflict with the approach of other circuits,

justifies the grant of certiorari to review the decision below that

reversed the jury’s decision.

CONCLUSION

For the foregoing reasons the petition for Writ of Certiorari

should issue to review the judgment and opinion of the Eleventh

Circuit Court of Appeals.

Respectfully Submitted,

Ce

CAROL . CUMMINGS

Florida Bar No.: 0353442

CUMMINGS, HOBBS & WALLACE, P.A.

462 W. Brevard Street

Tallahassee, Florida 32301

Counsel for Petitioner

850-224-3730

850-224-2202 Facsimile

Dated: June 11, 2001

ORRIN? OR TE eT PET RPE LON Oy LO TPR,

iP ELLEN PEEL LT MOIS SIE PRN LOE Pee:

ernie OL IEOI

oP TROND:

IN THE

Supreme Court of the United States

October Term, 2001

No.

MARVIS JETT,

Petitioner,

VS.

WASHINGTON COUNTY SCHOOL BOARD,

Respondent.

APPENDIX “A”

Carolyn D. Cummings

FLORIDA BAR NO.: 0353442

CUMMINGS, HOBBS & WALLACE, P.A.

462 W. BREVARD STREET

TALLAHASSEE, FLORIDA 32301

(850) 224-3730

(850) 224-2202 FACSIMILE

Counsel for Petitioner

A-1

TABLE OF CONTENTS

Page

Amended Judgment of the U.S. District Court

Northern District of Florida

issued May 25, 2000 .................22.20- A2

Opinion of the United States Court of Appeals for the

Eleventh Circuit: Marvis Jett v. Washington

County School Board, Case No.: 00-11554

(2001), Unpublished ............... 2.0.2.2... Ad

Opinion of the United States Court of Appeals for

the Eleventh Circuit Denying Petition for

a And Petition for cette

En Banc .. EE OAC Oe ST Al3

Text of 42 U.S.C.§ 2000e-5(e). .. 0... ..eceeeee eee Al4

Text of 42 U.S.C. § 2000e-2(a) «0.00.00... Al5

Jett’s Letter of Demotion, From Washington

County Schooi Board .......................... Al6

A-2

UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF FLORIDA

PANAMA CITY DIVISION

MARVIS JETT, )

Plaintiff, )

vs. ) CASE NO. 5:99CV13-SPM

)

WASHINGTON COUNTY SCHOOL)

BOARD, )

Defendant. )

AMENDED JUDGMENT

This action came before the Court and jury with United

States District Judge Stephan P. Mickle presiding. The issues

have been tried and the jury has rendered its verdict.

It is ORDERED AND ADJUDGED judgment is entered

in favor of Plaintiff, MARVIS JETT, and against Defendant,

WASHINGTON COUNTY SCHOOL BOARD, as set forth

in the verdict awarding the Plaintiff, MARVIS JETT:

Total verdict amount: $134,000

Plaintiff is awarded pre-judgment interest based on an

annual rate of 5.411% in a sum certain of $8,861.14 on the

back pay and benefits award of $48,000 ($34,000 back pay and

$14,000 benefits).

Post-judgment interest shall accrue at an annual rate of

5.411% upon the filing and entry of this judgment on the

docket as provided by law.

wena , ST OM 73013 SMS oF 32(a){1) & 6S

SO P18S sea) 10:1 v a, Mabsly

et 8 ee ee

A-3

Plaintiff shall be reinstated to a position with pay equivalent to

what she was making before her demotion, with all pay raises,

changes in pay grade and benefits she would have received but

for her demotion. The reinstatement shall take place upon the

beginning of the pay period beginning on or about March 1,

2000.

Attorney's fees and costs are allowed as provided by law.

ROBERT A. MOSSING, CLERK

Date:

—_ cc: Carolyn D. Cummings

Cummings, Hobbs & Wallace, P.A.

462 West Brevard Street

Tallahassee, Florida 32301

William R. Mabile, III

Fuller, Johnson & Farrell, P.A.

Post Office Box 1739

Tallahassee, Florida 32302-1739

A-4

{DO NOT PUBLISH]

iN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

FILED

U. S. COURT OF APPEALS

ELEVENTH CIRCUIT

FEB 1, 2001

No. 00-11554 THOMAS K. KAHN

CLERK

D.C. Docket No. 99-00013-CV-5-SPM

MARVIS JETT,

Plaintiff- Appellee,

versus

WASHINGTON COUNTY SCHOOL BOARD,

Defendant-Appellant.

Appeal from the United States District Court

for the Northern District of Florida

(February 1, 2001)

Before TJOFLAT and BIRCH, Circuit Judges, and VINING*,

District Judge.

“Honorable Robert L. Vining, Jr., U. S. District Judge for the

Northern District of Georgia, sitting by designation.

Tw se ef

A-5

VINING, District Judge:

In ibis action, brought pursuant to Title VII of the

Civil Rights Act of 1964, as amended, 42 U.S.C. ' 2000e,

et seq., the jury returned a verdict in favor of the plaintiff

in the amount of$134,000.00. The defendant appeals the

district court’s denial of its (1) motion for summary

judgment, (2) motions for judgment as a matter of law,

made at the close of the plaintiffs case and at the end of the

trial, and (3) motion for new trial. Concluding that the

plaintiffs claim with respect to her job transfers is barred

because she failed to file a timely charge of discrimination and

concluding that the plaintiff failed to make a prima facie case

of discrimination with respect to the defendant's commensurate

salary policy, this court reverses.

L. BACKGROUND

Marvis Jett was hired by the Washington County School

Board (“Board”) in 1967 and was the first black secretary to be

employed in the District Office. In /985, Jett’s supervisor

retired, and his duties (property and textbook management)

were reassigned to other district administrators. Four years

later, in April 1989, Superintendent Kelly Brock called Jett into

his office and told her that she was being transferred to the

media center because the District Office had too many

secretaries. When Jett threatened to file a discrimination

complaint, since she was the only black secretary in the District

Office and had more seniority than the other secretaries, Brock

stated that he would laterally transfer her, allowing her to

maintain her salary and job title.'

‘Jett contends that she was transferred so that a white secretary, Sandra

French, could have her job. The Board concedes that French took on some of

the duties previously handled by Jeff but argues that Jett had not had those

duties since 1985, when the duties had been dispersed to other secretaries.

A-6

Jett was extremely unhappy at the media center and

complained on numerous occasions about how the other

staffers there, two white females, treated her. In August 1990

Jett was transferred to Chipley High School, where she

performed teacher's aide duties but was paid her higher

secretarial salary and benefits. In 1992, Jett was again

transferred, this time to Roulhac Middle School. Jett assisted

with the In-School Suspension Program, performing the duties

of a teacher’s aide but retaining her secretarial salary and

benefits.

In 1993, after giving public notice as required by Florida's

Administrative Procedure Act, the Board adopted a policy

whereby demoted employees would be paid salaries

commensurate with their new positions. That policy stated:

“Effective July 1, 1994 all employees who have been

reassigned or who are reassigned (transferred) to a position

with lower pay will be paid on the salary schedule

commensurate with the position to which they are assigned”

Phillip Roundtree, who was Chairman of the Board at the time

of the trial, testified that the impetus behind his making this

proposal was that a principal had been demoted to a classroom

teacher position but was still retaining his principal’s salary

(approximately $10,000 more than he would have been entitled

to as a classroom teacher). Roundtree testified that he thought

it was unfair to pay a demoted person the same salary he

received before being demoted. The policy affected everyone

who had been demoted, including at least three white males.

Jett was the only black person affected, and her annual salary

was reduced by approximately $4600.00.

On July 27, 1994, Jett filed a charge of discrimination with

the Florida Commission on Human Relations. The

Commission found the charge to be without merit, and on July

14, 1998, the Equal Employment Opportunity Commission

adopted the findings of the Florida Commission and issued a

A-7

right to sue letter to Jeff. On October 13, 1998, Jett filed suit in

state court alleging that she had been discriminated against

because of her race in violation of 42 U.S.C. § 2000e, et.;? on

January 27, 1999, the Board removed the action to the United

States District Court for the Northern District of Florida.

The Board filed a motion for summary judgment, which the

district court denied. The case proceeded to trial. The Board

moved for a directed verdict at the close of the plaintiffs case

and again at the close of all the evidence.’ Following a jury

verdict in favor of Jett in the amount of $134,000 ($34,000 for

back pay; $14,000 for lost benefits, and, $86,000 for pain and

suffering), the Board moved for judgment notwithstanding the

verdict. The district court denied that motion and, likewise,

denied the Board’s motion for new trial. This appeal then

followed.

Il. STANDARD OF REVIEW

This court reviews de novo the denial of a motion for

summary judgment, but the review is based upon all the

evidence adduced in the district court, not simply the

evidence before the court at the time it ruled on the

motion. Wenzel v. Boyles Galvanizing Co., 920 F.2d 778

(11" Cir. 1991). This court reviews de novo a district

court’s determination of a Rule 50/6) motion. See, e.g.,

Combs v. Plantation Patterns, 106 F.3d1519,1526(11"

Cir.1997). In doing so, "we must consider all the

evidence in the light most favorable to [the nonmovant]

and determine’whether or not reasonable jurors could

have concluded as this jury did based on the evidence

presented."’ /d.

*Jett also asserted other claims but those were subsequently dismissed and

were not pursued cither at trial or on appeal.

*Although counsel used the terms “directed verdict” and, later, “judgment

notwithstanding the verdict,” these motions are now termed “judgment as a

matter of law.” See Rule 50, Federal Rules of Civil Procedure.

A-8

(quoting Quick v. Peoples Bank, 993 F.2d 793, 797 (11th Cir.

1993)).

I. DISCUSSION

Ordinarily, a charging party must file a claim with the Equal

Employment Opportunity Commission within 180 days of the

alleged unlawful activity. However, if the charging party has

instituted proceedings with a state agency authorized to address

the alleged unlawful activity, the charging party is given 300

days from the date of the activity to file the claim. 42 U.S.C. §

2000e-5(e). This time requirement, since it is not jurisdictional,

may be tolled under certain circumstances. See Zipes v. Trans

World Airlines, Inc., 455 U.S. 385, 102 S.Ct. 1127 (1982). In

the instant case, it is undisputed that Jett filed her charge more

than 300 days after her demotion and transfers occurred.

Therefore, unless the 300-day period is tolled, Jett’s claims of

discrimination with respect to her demotion and transfers are

time barred.

The limitations period does not begin to run "until the facts

which would support a charge of discrimination are apparent or

should be apparent to a person with a reasonably prudent

regard for his rights.” Sturniolo v. Sheaffer, Eaton, Inc., 15

F.3d 1023, 1025 (11th Cir. 1994). Nevertheless, “a plaintiff

who is aware that she is beimg replaced in a position she

believes she is able to handle by a person outside the

protected... group knows enough to support filing a claim.”

Blumberg v. HCA Management Co., 848 F.2d 642, 645 (11th

Cir. 1988). The limitations period is also tolled during the time

that an employer actively misleads an employee with false

promises of another position, i.e., the period is equitably tolled

“until such time as it is or should be apparent to an employee

with a reasonably prudent regard for his rights that the

employer has ceased to actively pursue such a position.” Cocke

v. Merrill Lynch & Co., 817 F.2d 1559, 1561 (11th Cir. 1987).

A-9

In the instant case, Sandra French began working in the

District Office within a very short time after Jett’s initial

transfer, in 1989. Furthermore, left does not contend that she

was unaware of French’s employment at the District Office

during this period of time. Thus, this case is unlike Sturniolo,

where the plaintiff, who had been told that his position was

being eliminated in an effort to consolidate sales territories,

later learned that his sales territory had not been eliminated and

that, in fact, a younger person had been hired to replace him.

The plaintiffs charge, filed within 180 days of learning about

the replacement, was considered timely. “The date when

Sturniolo knew or should have known that Sheaffer had hired a

younger individual to replace him is the date upon which the

tolling period should commence.” Sturniolo, 15 F.3d at 1026.

Jett also contends that the decision not to reduce her salary

in 1989 was designed to prevent her from filing a complaint of

discrimination. Even if that were the effect of the decision,

such action did not prevent Jeff from filing a charge of

discrimination. The fact that Jett backed off from her threat to

file a charge of discrimination after being allowed to keep her

salary in no way means that she was misled about her legal

rights or her ability to file a charge.

As a final matter Jeff argues thai Brock’s repeated

statements that he would consider her for a secretarial position

in the District Office if an opening occurred should also toll the

limitations period. Even assuming that the statements were

couched in such affirmative tones that Jeff would have been

misled about the Board’s intention not to return her to a

secretarial position, this court concludes that it would not have

taken a reasonably prudent person more than two years to

ascertain that the statements were false. Jeff was initially

transferred in 1989 but did not file a charge of discrimination

until 1994. For Jett to have relied upon statements by Brock

and Superintendent Bill Williams for such a long period of

time was inherently unreasonable. This court determines that

A-10

the limitations period was not tolled for this entire period and

that charge filed on July 27, 1994, was untimely with respect to

Jeff s demotion and transfers.

The court now turns to the commensurate salary policy,

adopted by the Board effective as of July 1, 1994. That policy

required that “all employees” who had been demoted or

transferred be paid commensurate with the position to which

they had been demoted or transferred.

To present a prima facie case of race discrimination based

upon circumstantial evidence and alleging disparate treatment,

a plaintiff must utilize the framework set out in McDonnell

Douglas Corp. v. Green, 411 U.S. 792,93 S.Ct. 1817 (1973).

She must show that (1) she belongs to a racial minority, (2) she

was subjected to adverse employment action, (3) her employer

treated similarly situated employees outside her racial

classification more favorably, and (4) she was qualified for the

job. See Holjfield v. Reno, 115 F.3d 1555 (lithCir. 1997).

Even assuming that Jett met the other requirements, this

court finds that she failed to show that the Board treated

similarly situated employees differently. Jett offered no

evidence that similarly situated white employees were not

affected by this policy. Indeed, Jett testified that of the persons

who suffered pay cuts in 1994 as a result of the policy, she was

the only black person affected; all the others were white. (Trial

Transcript, Vol. I, p. 129). Thus, the evidence clearly showed

that the policy was applied to all employees of the Board and

that blacks and whites were treated identically under the policy.

The district judge erred in holding that Jeff had proven the

elements of a prima facie case.

Even if Jett had proven the elements of a prima facie case,

the district judge was still required to grant summary judgment

(or, later, judgment as a matter of law) on Jett’s commensurate

salary claim since the Board articulated a_ legitimate

nondiscriminatory reason for its adoption of the policy and

A-11

Jett did not show that the reason was pretextuaL‘ Dr. Beverly

Helms, Director of Administrative Services of the Washington

County School Board, and Phillip Roundtree, a Board member,

both testified that the school system was experiencing financial

problems and that the impetus behind adoption of the policy

was to stop paying demoted employees salaries that were

higher than those salaries being paid to others doing the same

work. Trial Transcript, Vol. Il, pp. 13 1-137, 147-152. Jeff

presented no evidence to show that these reasons were

pretextual. -

IV. SUMMARY

Because Jett failed to file a timely charge of discrimination

with respect to her job transfers and because she failed to show

the Board’s commensurate salary policy was the product of

discriminatory animus, the judgment of the district court is

“Once a plaintiff presents a prima facie case of racial discrimination, the

burden then shifts to the defendant to “articulate some legitimate,

reason for the employee’s rejection.” Lee v. GTE Florida,

Inc., 226 F.3d 1249, 1253 (11th Cir. 2000). “To satisfy this intermediate

burden, the employer need only produce admissible evidence which would

allow the trier of fact rationally to conclude that the employment decision had

not been motivated by discriminatory animus.” Texas Department of

Community Affairs v. Burdine, 450 U.s. 248, 257, 101 5.Ct. 1089, 1096

(1981). If the employer meets this burden of production, the plaintiff must

then establish that the defendant’s proffered reasons for the action it took were

pretextual. Lee, 226 F.3d at 1253.

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REVERSED and the case is REMANDED with instructions

that Jett’s claims be dismissed with prejudice.

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IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

No. 00-11554-DD

MARVIS JETT,

Plaintiff-Appel le

versus

WASHINGTON COUNTY SCHOOL BOARD,

Defendant-Appellant.

On Appeal from the United States District Court for the

Northern District of Florida

ON PETITION(S) FOR REHEARING AND PETITION(S)

FOR REHEARING EN BANC

(Opinion , 1th Cir., 19_, F.2d)

Before: TIOFLAT and BIRCH, Circuit Judges, and VINING*,

District Judge

PER CURIAM:

The Petition(s) for Rehearing are DENIED and no member 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 Petition(s) for Rehearing En Bane are

ENTERED FOR THE COURT:

UNT TATES' ¢c T JUDGE

DENIED.

*Honorable Robert L. Vining, Jr., U.S. District Judge for the

Northern District of Georgia, sitting by designation.

A-14

United States Code, Title 42: Section 2000e-S(e), Page 556-

557 (1997 Ed.).

(e) Time for filing charges; time for service of notice of charge

on respondent filing of charge by Commission with State or

local agency; seniority

(1) A charge under this section shall be flied within one

hundred and eighty days alter the alleged unlawful employment

practice occurred and notice of the charge (including the date,

place and circumstances of the alleged unlawful employment

practice) shall be served upon the person against whom such

charge Is made within ten days thereafter, except that In a case

of an unlawful employment practice with respect to which the

person aggrieved has Initially instituted proceedings with a

State or local agency with authority to grant or seek relief from

such practice or to institute criminal proceedings with respect

thereto upon receiving notice thereof, such charge shall be filed

by or on behalf of the person aggrieved within three hundred

days alter the alleged unlawful employment practice occurred,

or within thirty days after receiving notice that the State or local

agency has terminated the proceedings under the State or local

law, whichever is earlier, and a copy of such charge shall be

filed by the Commission with the State or local agency.

(2) For purposes of this section, an unlawful employment

practice occurs, with respect to a seniority system that has been

adopted for an intentionally discriminatory purpose in violation

of this subchapter (whether or not that discriminatory purpose

is apparent on the face of the seniority provision), when the

seniority system Is adopted, when an individual becomes

subject to the seniority system, or when a person aggrieved Is

injured by the application of the seniority system or provision

of the system.

_—

were

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United States Code, Title 42: Section 2000e-2(a), Page 546

(1997 Ed.). ;

§2000e-2. Unlawful employment practice.

(a) Employer practice.

It shall be an unlawful employment practice for an employer-

(1)to fall or refuse to hire or to discharge any individual, or

otherwise to discriminate against any individual with respect to

his’ compensation, terms, conditions, or privileges of

employment, because of such individual’s race, color, religion,

sex, or national origin; or

(2)to limit, segregate, or classify his employees or applicants

for employment in any way which would deprive or tend to

deprive any individual of employment opportunities or

otherwise adversely affect his status as an employee, because

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

origin.

A-16

Washington County

District School Board

206 N. 3rd Street

Chipley, Florida 32428

June 2, 1994

Bill Williams

Superintendent of Schools

(904) 638-6222

Fax (904) 638-6226

Ms. Marvis Jett

518 Church Street

Chipley, Florida 32428

Dear Marvis:

This is to confirm our discussion of June 1, 1994. The

School Board has approved your employment for 1994-95 as

an aide. You are assigned to Roulhac Middle School. As |

indicated to you in our meeting, the policy that was approved

by the Board on July 12, 1993 says that effective July 1, 1994,

all employees who have been re-assigned or who are assigned

to a position with lower pay will be paid on the salary schedule

commensurate with the position to which they are assigned.

This means that 1) you will no longer receive pay as a

school secretary; 2) you will not earn annual leave; 3) you will

be employed on a one hundred ninety six (196) day contract on

the aide salary schedule; and 4) you will be paid for your

annual leave accrued and not used as of June 30, 1994. Our,

records reflect that you will have 2168 days annual leave as of

June 30, if you have not used or do not use any

A-17

additional days beyond those we have on file at the district

office. You will receive pay for these, consistent with School

Board Policy rather than being allowed to continue to use them

at your’s and the Principal’s discretion.

I am attaching a copy of the board policies and procedures

that apply to your situation. I have highlighted the information

that I have referenced.

At the June 20 School Board meeting I will recommend that

you be employed at Chipley High School for the month of July

to assist in the summer school program. Mr. Pat Williams will

make your specific assignment and will supervise you.

Feel free to contact me if von have anv anestions-

Sincerely,

RLS pA ihban—

Bill Williams, Superintendent

WASHINGTON COUNTY SCHOOLS

CC: School Board Members

Pat Williams, Principal - Chipley High

Calvin Stevenson, Principal - Roulhac Middle

“An Equal Opportunity Agency”