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11th Circuit Panel Splinters Over Lesbian’s Appeal of Title VII Dismissal

Posted on: March 12th, 2017 by Art Leonard No Comments

A three-judge panel of the Atlanta-based U.S. Court of Appeals for the 11th Circuit issued a divided ruling on March 10 holding that a lesbian plaintiff suing for discrimination under Title VII of the Civil Rights Act of 1964 could file an amended complaint alleging that she suffered discrimination because of sex stereotyping, but upholding the district court’s dismissal of her claim that sexual orientation discrimination violates the statute.  A dissenting judge, agreeing with the Equal Employment Opportunity Commission (EEOC), which submitted an amicus brief in the case, and Lambda Legal, which was appointed to represent the plaintiff on appeal, argued that the plaintiff should be allowed to pursue her sexual orientation discrimination claim as well.  Lambda Legal, representing the appellant, immediately announced that it would petition for rehearing “en banc” before the entire 11th Circuit bench.

Unsurprisingly, the judges rejecting the sexual orientation claim, Circuit Judge William Pryor and Florida District Judge Jose Martinez, were appointed by President George W. Bush.  The dissenter, Circuit Judge Robin Rosenbaum, was appointed by President Barack Obama.

This case is one of appeals recently argued in three different federal circuits presenting the question whether sexual orientation discrimination claims are covered as “discrimination because of sex” under Title VII.  The Chicago-based 7th Circuit heard argument “en banc” on November 30, and the New York-based 2nd Circuit heard three-judge panel argument in two different appeals in January. So far, no federal circuit court has ruled favorably on such a claim, although many have ruled that gay plaintiffs can sue under Title VII on gender-based sex stereotyping claims, depending on their factual allegations.  There are older court of appeals precedents in most circuits rejecting sexual orientation discrimination claims, as such, under Title VII.  The Supreme Court has never directly ruled on the question.

In this case, Evans v. Georgia Regional Hospital, plaintiff Jameka Evans claimed that she was discriminated against in her position as a security officer at the hospital because of both gender non-conformity and sexual orientation.  Evans is a “butch” lesbian who claims she was discriminated against because she failed to carry herself in a “traditional womanly manner” and that “it was ‘evident’ that she identified with the male gender, because of how she presented herself – ‘(male uniform, low male haircut, shoes, etc.’),” wrote Judge Martinez.

She filed her case in federal district court in Savanah, Georgia, without a lawyer (“pro se”). The district judge, J. Randal Hall, referred her case to a magistrate judge to rule on procedural issues and “screen” the claim, as is usually done with “pro se” cases.  Magistrate Judge George R. Smith found procedural problems and, applying old circuit precedent, held that the claim of sexual orientation discrimination could not be brought under Title VII.  Smith recommended dismissal of the case. Lambda Legal submitted an amicus brief, urging Judge Hall to reject the Magistrate’s recommendation, but Hall dismissed without reference to Lambda’s arguments.  However, Hall then appointed Lambda to represent Evans on appeal to the 11th Circuit, and Gregory Nevins from Lambda’s Atlanta office argued the appeal.  The hospital never responded to the complaint and was not represented at the one-sided argument before the court of appeals.

At the heart of this appeal and of the other pending cases on the same question is the effect of two Supreme Court rulings, Price Waterhouse v. Hopkins and Oncale v. Sundowner Offshore Services. In the first of these, the Court ruled that an employer’s denial of a partnership to a woman because of her failure to conform to the employer’s stereotyped view of how women should behave and present themselves was evidence of discrimination “because of sex” in violation of Title VII.  In the second, the Supreme Court overturned the lower court’s dismissal of a same-sex harassment case in a unanimous opinion authored by Justice Antonin Scalia holding that the interpretation of discrimination “because of sex” was not limited based on the intentions of Congress when it enacted the statute in 1964.  Scalia commented that “comparable evils” to those that Congress sought to address might be covered by the statute, and that we are governed by the language of our statutes as adopted by Congress, not by the presumed intentions expressed by individual legislators or committees as reflected in the legislative history.  Thus, a claim by a man that he was subjected to sexual harassment by male co-workers could be dealt with under Title VII, even if members of Congress did not anticipate or intend that such cases could be brought under Title VII.

LGBT rights advocates have used these two Supreme Court cases to argue that gay and transgender plaintiffs who suffer discrimination because of their sexual orientation or gender identity should be able to bring sex discrimination claims under Title VII. Sex stereotyping is arguably present to some extent in all such cases and, at a more fundamental level, anti-gay and anti-trans discrimination is “necessarily” because of sex.  These arguments persuaded the EEOC during the Obama Administration, resulting in administrative rulings in cases raised by LGBT federal employees, and have also persuaded some federal district judges.  Several federal courts of appeals have accepted the sex stereotyping argument, but only to a limited extent, according to the extensive concurring opinion in Evans’s case by Judge Pryor.  So far, no federal circuit court has accepted the argument that an otherwise gender-conforming gay person can bring a sex discrimination claim under Title VII.

Judge Martinez premised his vote to reject the sexual orientation discrimination claim on a 1979 decision by the 5th Circuit, Blum v. Gulf Oil Corporation, 597 F.2d 936, in which that court said that “discharge for homosexuality is not prohibited by Title VII” as an alternative basis for its ruling.  Effective on September 30, 1981, a statute divided the old 5th Circuit in half, assigning Georgia to the newly-created 11th Circuit. At that time, the 11th Circuit ruled that former 5th Circuit cases would be treated as precedent in the new 11th Circuit, so this case counts as a binding circuit precedent.  Lambda argued that the 1979 ruling is no longer valid in light of the 1989 Price Waterhouse decision and the 1999 Oncale decision.  Martinez and Pryor both rejected that argument, but dissenting Judge Rosenbaum embraced it.  At the oral argument, Judge Pryor had observed that in light of the Blum precedent, the three judge panel most likely could not rule in favor of Evans on this point, as only an en banc panel could reverse circuit precedents.

As to the sex stereotyping claim, Martinez asserted that Evans’ pro se complaint “failed to plead facts sufficient to create a plausible inference that she suffered discrimination. In other words, Evans did not provide enough factual matter to plausibly suggest that her decision to present herself in a masculine manner led to the alleged adverse employment actions.”  However, he wrote, it was inappropriate for the district judge to dismiss her case outright rather than allowing her to file an amended complaint, since her theory of sex stereotyping discrimination was a theory accepted in the 11th Circuit and it was possible that, in light of the court’s discussion of her claim, she might be able to meet these pleading deficiencies in an amended complaint.  It is customary in pro se cases to allow the plaintiff to file an amended complaint if she is asserting a claim under a valid legal theory and there is a possibility that a better framed complaint could survive screening.

Pryor’s concurring opinion agreed that the magistrate erred in asserting that a sex stereotyping argument by a lesbian plaintiff was just “another way to claim discrimination based on sexual orientation,” and thus Evans should get a second chance to frame a complaint that might survive review. However, he argued at length to refute the arguments by the EEOC and Judge Rosenbaum that sexual orientation discrimination claims were “necessarily” sex discrimination claims.  Pryor insisted on a strict distinction between “status” and “conduct,” arguing that sex stereotyping claims were tied to the plaintiff’s conduct in failing to conform to gender stereotypes.  Thus, a claim of sexual orientation discrimination not accompanied by factual allegations about the plaintiff’s gender non-conformity fell short, in his view, of coming within the compass of discrimination “because of sex.”  He was not willing to accept the argument that being sexually attracted to members of the same-sex would suffice to constitute non-conformity with sexual stereotypes.

Judge Rosenbaum took a diametrically opposite approach, embracing a theoretical description of how Price Waterhouse had changed Title VII law by extending prior sex stereotyping cases to adopt a “prescriptive stereotyping” model. In prior cases, the Supreme Court had condemned “ascriptive stereotyping,” situations where an employer discriminated against a class of employees because of a stereotype about the class.  For example, an employer required women to contribute more to its pension plan than men in order to get the same monthly benefits upon retirement, based on the stereotype that women live longer than men so it would all “even out” in the end.  The Supreme Court condemned this practice as sex discrimination, finding that the statute protects individuals from being treated based on class-based stereotypes.  In Price Waterhouse, the Court for the first time condemned “prescriptive stereotyping,” where an employer discriminated against an employee because she failed to conform to a sexual stereotype, presenting a demeanor which was not traditionally feminine.

Applying this to the sexual orientation case, Rosenbaum accepted the argument that in such cases the employer was discriminating because the employee violated the stereotypical view that men are supposed to be attracted to women, not to men, and vice versa. Furthermore, she found that it was clearly sex discrimination to treat a woman differently based on whether she was attracted to men or women.

Judge Rosenbaum argued that Pryor’s opinion was “at war” with his vote a decade ago that allowed a sex discrimination claim under the Equal Protection Clause by a transgender employee of the Georgia legislature. Indeed, Pryor’s vote in the former case, Glenn v. Brumby, had given the plaintiff hope in this case that the panel might rule in her favor.  Pryor devoted considerable effort in his concurring opinion to explaining why he found this case to be different, once again relying on the “status” and “conduct” distinction.  Cross-dressing and announcing plans to transition were “conduct,” in his view, while having a sexual orientation was “status.”  He argued that sex stereotyping theory was concerned with conduct, not status, in its focus on gender non-conformity.

The sharp division among the judges may lead the 11th Circuit to agree to hear the case en banc, especially noting that one member of the panel was a district judge.  The federal judiciary is so short-handed as a result of the Republican-controlled Senate’s stonewalling of President Obama’s court of appeals nominees during his second term that it has become increasingly common for some particularly short-staffed circuits to fill-out three-judge panels by “designating” district court judges to provide the third member to make up a panel.  These district judges do not participate if the case is reargued en banc.  Furthermore, with the 7th Circuit having held en banc argument on this question recently, it seems clear that many federal judges believe it is time to reconsider the issue.  Meanwhile, decisions from the 7th and 2nd Circuits are eagerly awaited, especially if they create a “circuit split” that would entice the Supreme Court to agree to take up the issue.

Retroactivity of Marriage Rights Continues to Occupy Courts

Posted on: May 17th, 2016 by Art Leonard No Comments

In two recent decisions courts have had to deal with the question whether marriage rights for same-sex couples, declared by the U.S. Supreme Court on June 26, 2015, should be projected backwards in time in particular cases involving the death of gay men and the rights of their surviving partners. In one, the surviving partner received the spousal benefit he sought, proceeds from a wrongful death lawsuit, although the court ended up not ruling directly on the retroactivity claim.  In the other, the surviving partner was unsuccessful because his partner died seven months after same-sex marriage became available in their state, New Jersey, but just days before they were scheduled to marry.

First, the hard-luck timing story from New Jersey: Rucksapol Jiwungkul and Maurice R. Connolly, Jr., began their relationship in 1983 and it continued until Connolly’s death on June 2, 2014.  On July 10, 2004, the date that New Jersey’s Domestic Partnership Law went into effect, the men registered as domestic partners.  At that time a lawsuit was pending in the New Jersey courts seeking marriage equality, but the plaintiffs in that case had suffered an initial setback before the Superior Court and the case was on appeal.

On October 25, 2006, the New Jersey Supreme Court ruled in Lewis v. Harris that same-sex couples were entitled to have some form of legal recognition from the state that would provide all the rights and benefits of marriage, but that the state could meet this constitutional requirement by enacting a civil union law if the legislature was not inclined to simply amend the marriage law to let same-sex couples marry. The legislature took the civil union route, and that statute went into effect on February 19, 2007.

Jiwungkul and Connolly decided not to register as civil union partners, and they were very public about their decision. Connolly was quoted in an article in The Philadelphia Inquirer on December 8, 2006, shortly after the legislature passed the Civil Union Law, describing himself as “furious” that the legislature did not opt for marriage, and explaining that they decided not to enter into a civil union because it “was not equivalent to marriage.”

After the U.S. Supreme Court ruled on June 26, 2013, in United States v. Windsor, that the Defense of Marriage Act was unconstitutional, a lawsuit previously filed by Garden State Equality seeking to reopen the marriage equality question in New Jersey suddenly sprang to life. Within months the court had ruled that in light of Windsor, same-sex couples in New Jersey should be entitled to marry. When the New Jersey Supreme Court upheld the trial judge’s refusal to stay her ruling, Governor Chris Christie dropped the state’s appeal and the ruling went into effect on October 21, 2013.

Jiwungkul and Connolly sprang into action, starting to make arrangement for a June wedding. In anticipation of the wedding, they applied for a marriage license on May 27, 2014.  Their application stated that the wedding would take place on June 8, and the license was issued.  Tragically, Connolly died suddenly and unexpectedly on June 2, leaving Jiwungkul as his surviving domestic partner and executor and principal beneficiary of his estate.

Connolly’s bequests to Jiwungkul were not subject to the New Jersey transfer inheritance tax, because the Domestic Partnership Law specifically exempts surviving domestic partners from having to pay a tax on an inheritance from their domestic partner. But Connolly’s estate was required to pay New Jersey estate tax of $101,041.00.  Jiwungkul filed the appropriate estate tax return but then filed an amended return claiming the spousal deduction, requesting a refund of the entire $101,041.00.

The New Jersey Department of Taxation rejected his refund claim, pointing out that the Domestic Partnership Law did not provide the marital deduction for estate tax purposes for domestic partners. Had the men registered for a state civil union, the marital deduction would have been available, since the New Jersey Supreme Court’s decision in Lewis v. Harris required that state civil unions provide the same rights as marriage.  And, of course, had the men married promptly after the Garden State Equality decision went into effect, as many N.J. domestic partners and civil union partners did, Jiwungkul would have been a surviving spouse, so the estate could claim the spousal deduction, which would have wipe out any obligation to pay state estate tax.

Jiwungkul filed suit in the New Jersey Tax Court, challenging the denial of his refund, claiming that as a result of the developments in judicial decisions, it would be appropriate to treat him as a surviving spouse and allow the marital deduction to the estate. The Presiding Judge of the Tax Court, Patrick DeAlmeida, denied his claim.  Jiwungkul v. Director, Division of Taxation, 2016 N.J. Tax Unpub. LEXIS 28 (May 11, 2016).

DeAlmeida pointed out that the men could have entered into a Civil Union, qualifying their estates for the spousal deduction, as early as February 2007, but they made a conscious choice not to do so. Furthermore, they could have married beginning on October 21, 2013.  “There is longstanding policy in this State,” he wrote, “of not according statutory rights to couples who have not fulfilled the statutory requirements for a government-sanctioned relationship.  He rejected the argument that because the right to marry has the status of a constitutional right, the Domestic Partnership Law of 2004 should be retroactively interpreted to provide the spousal deduction for estates of same-sex partners whose only legally recognized status at the time of death was being domestic partners.

This couple, however, delayed marrying. “They are, of course, free to order their affairs in any manner they see fit,” wrote the judge.  “They must, however, accept the legal consequences, including the ramifications of the tax laws, of their decisions.  Had they entered into a civil union during the many years it was available to them, or married sooner after the decision in Garden State Equality, decedent’s unexpected passing would not have resulted in the tax liability contested in this case.  Plaintiff and decedent suffered from a tragic turn of events, the tax consequences of which could have been avoided.”

This ruling can be appealed to the Appellate Division of the Superior Court. Jiwungkul, as executor of Connolly’s estate, is represented by Robyne D. LaGrotta of Parsippany.

The other case, from Alabama, turned out more favorably for the surviving partner. Paul Hard and David Fancher, Alabama residents, went to Massachusetts to marry on May 20, 2011.  At the time, Alabama did not recognize their marriage. Shortly after they returned home, Fancher died when the car he was driving on the interstate collided with a United Parcel Service Tractor Trailor.  Because Alabama did not recognize the marriage, the death certificate stated that he was “never married” and Hard was not listed as his surviving spouse.  The court appointed an administrator for Fancher’s estate, who filed a wrongful death lawsuit against United Parcel.  Under Alabama law, estates have to distribute the proceeds from wrongful death actions to the legal heirs of the decedent, according to the intestate succession statute.  If a person is survived by a spouse but no children, but there is at least one surviving parent, the surviving spouse receives the first $100,000 plus one half of the balance, the other half of the balance going to surviving parents.  If there is no surviving spouse but there are surviving parents, the proceeds go to the surviving parents.  Fancher was survived by his mother, Pat Fancher.

While the wrongful death case was pending, Hard filed a lawsuit against Alabama officials and the administrator of Fancher’s estate. He sought three things: a declaration that Alabama’s refusal to recognize his marriage to Fancher violated the constitution, an injunction requiring Alabama to issue a new death certificate taking account of the marriage, and an injunction ordering the estate to distribute to him the spousal share of any recovering in the wrongful death suit.  Pat Fancher filed a motion to intervene in the case, arguing that she was entitled to the full proceeds of any wrongful death action because Alabama did not recognizing the marriage so there was no “surviving spouse” as far as Alabama was concerned.  Chief U.S. District Judge William Keith Watkins let her intervene.  The administrator of Fancher’s estate agreed to set aside the spousal share of any amount that would be recovered until such time as this lawsuit was resolved.

A settlement was reached with United Parcel several months later, and the estate administrator paid Pat Fancher the portion of the proceeds that she would be entitled to receive even if the marriage was recognized (half the balance over $100,000), putting the rest, about half a million dollars, in a trust account pending the resolution of Hard’s case. Meanwhile, litigation was proceeding separately challenging Alabama’s refusal to recognize same-sex marriages, and U.S. District Judge Callie Granade ruled in the Searcy case on January 23, 2015, that the ban was unconstitutional.  When she refused to stay her ruling, the Alabama State Registrar of Vital Statistics issued a new death certificate recognizing the Held-Fancher marriage, and the judge in Held’s case allowed the administrator of the state to intervene to pay over the balance of the trust money into the court’s registry.  Judge Watkins then stayed the case, pending the U.S. Supreme Court’s decision in Obergefell v. Hodges, which was expected by the end of June.

When the Supreme Court ruled, Hard moved to lift the stay and disburse the remaining money to him. At the same time, Alabama Attorney General moved to have the case dismissed as moot, arguing that because he was required to recognize the marriage under Judge Granade’s injunction, the Supreme Court had struck down the ban on same-sex marriage, and Hard had obtained the substitute death certificate, there was nothing left for the court to decide and the case was moot.  The court granted Hard’s motion to release the funds to him and dismissed the case on July 15.

Pat Fancher quickly filed a motion to set aside the dismissal order and block payment of the funds to Hard. She argued that unless the Obergefell case applied retroactively, the amended death certificate was invalid, because at the time her son died he was not legally married to Hard under the Alabama law then in effect.  The district court denied the motion and ordered the clerk court to distribute the money, about $500,000, to Hard.  Pat Fancher appealed.

The 11th Circuit Court of Appeals denied her appeal on April 20, in Hard v. Attorney General, 2016 WL 1579015.  The court pointedly refrained from deciding whether Obergefell applies retroactively.  Rather, it focused on the failure of Fancher’s motion to argue that the case was not moot, which would be the only valid ground to challenge the trial court’s decision to dismiss the case.  The 11th Circuit pointed out that as Hard had obtained all the relief he was seeking, there was no “live controversy” before the district court.

As to Fancher’s challenge to the district court’s order to the clerk to pay the remaining money to Hard, the court said, “We conclude there was no abuse of discretion because the district court properly applied Alabama law of intestate succession pertaining to surviving spouses. Simply put, once the State of Alabama recognized Hard as the surviving spouse and the district court dismissed the case as moot, the court committed no abuse of discretion by disbursing the funds accordingly.”

Held is represented by Montgomery attorneys David Dinielli, Scott Daniel McCoy and Samuel Eugene Wolfe. Pat Fancher is represented by Matthew Thomas Kidd, also of Montgomery.   The 11th Circuit opinion was issued “per curiam” by a panel consisting of Judges Adalberto Jordan, Julie Carnes and Jill Pryor.

Surprising Development in Florida Marriage Equality Case

Posted on: December 3rd, 2014 by Art Leonard No Comments

When U.S. District Judge Robert Hinkle ruled on August 21 in Brenner v. Armstrong and Grimsley v. Armstrong that Florida’s ban on same-sex marriage was unconstitutional, he stayed his preliminary injunction until January 5, 2015, to give the state a chance to appeal to the 11th Circuit.  He indicated that if the state wanted to have the decision stayed longer until the Court of Appeals could decide on the merits, it should ask the Court of Appeals for a longer stay.  The state filed its notice of appeal, accompanied by a Motion to Extend Stay of Preliminary Injunction Pending Appeal and for Expedited Treatment of This Motion.”

This afternoon, December 3, a three-judge panel of the 11th Circuit issued a terse order, as follows:  “Appellants’ request for expedited review of the Motion is granted.  Having reviewed and fully considered the Motion, the parties’ briefs, and the orders issued by the District Court in the proceedings below, the Court hereby denies Appellants’ Motion.  The stay of preliminary injunctions entered by the District Court expires at the end of the day on January 5, 2015.”

This means, implicitly, that the 11th Circuit panel has concluded that the factors normally considered in deciding whether to stay a ruling pending appeal do not balance out in support of the state’s motion.  And, of course, the first and most important factor is whether the Appellant is likely to prevail on the merits of its appeal.  They would also consider the harms to the plaintiffs if the district court’s order is stayed further, and the harms to the state if the injunction is allowed to go into effect.  And, of course, they would ask whether such harms, if any, are irreparable by after-the-fact money damages.  Finally, they would consider the public interest in granting or denying a stay.  The district court had more or less resolved these questions against the state, but was willing to give the state the benefit of a chance to get an appellate panel to consider them as well before the decision goes into effect.  This means that unless the state is able to get a stay issued by a “higher authority” — the U.S. Supreme Court — marriage equality would go into effect in Florida on January 6, 2015, without a ruling on the merits by the 11th Circuit.  This seems like a rather strong signal by the 11th Circuit about how they think a merits ruling from a panel of their court would turn out.

On the other hand, this may be a high-stakes game of “chicken” being played by the 11th Circuit panel.  They may be kicking the question of a stay to the Supreme Court (assuming the state will petition for one, which would seem consistent with Attorney General Bondi’s position on these cases) on the theory that the national momentum has been going in one direction, with the notable exception of the 6th Circuit, and that presentation of a stay application to the Supreme Court coming out of a circuit that has not yet ruled on the merits of marriage equality will require the Court to show its hand, perhaps a bit prematurely, in light of the pending petitions for certiorari from the 6th Circuit and Louisiana decisions.

We are now running into interesting timing issues in the national campaign for marriage equality.  The Florida stay expires at the end of business on January 5.  On January 9, the 5th Circuit is scheduled to hear oral arguments in the Texas and Louisiana cases and, perhaps, the Mississippi case as well, since the state has noticed its appeal there.  Later in January, one expects the Supreme Court will be considering in conference the certiorari petitions from the 6th Circuit states (Ohio, Michigan, Kentucky, Tennessee) and Louisiana (petition filed by Lambda Legal on behalf of the plaintiffs).  If the Supreme Court grants cert in one or more cases, there is the question whether the cases can be argued and decided during this term of the Court (by the end of June 2015), or whether by the time the Court makes a cert decision the argument docket for this term will be filled and the cases will be scheduled for argument in the fall?  If the former eventuates, then the 5th and 11th (and most likely the 8th) Circuits may never have to rule on marriage equality, because they would probably put all appeals on hold while waiting for a ruling by the Supreme Court.

If the Supreme Court refuses to stay the Florida injunction, that would send a clear signal to the district judges in Alabama and Georgia who are now sitting on summary judgment motions in marriage equality cases, that if they rule in favor of plaintiffs, there is no need to stay their rulings, because the 11th Circuit and the Supreme Court are unlikely to stay them.  So marriage equality might spread in the 11th Circuit would ever achieving a ruling from the Court of Appeals.  (Wishful thinking?  It’s a pretty conservative circuit.)  And if the Supreme Court were to grant the Louisiana cert petition, the 5th Circuit would probably refrain from ruling in the cases pending there.

Perhaps the worst scenario for getting real progress expeditiously would be if the Supreme Court doesn’t grant a cert petition until too late to schedule arguments this spring.  Then we all play the waiting game until next fall and might not see a final marriage equality ruling until sometime next winter, most likely early in 2016.  And it is possible that none of the remaining circuits would rule on pending appeals so long as a case is scheduled for argument before the Supreme Court.