19 F.4th 1261
11th Cir.2021Background
- Artur Davis, a Black former congressman and then Executive Director of Legal Services Alabama (LSA), was placed on paid suspension on August 18, 2017 pending investigation of employee complaints; he received a Resolution and a Suspension Letter listing alleged misconduct.
- LSA posted a security guard at its building and hired political consultant David Mowery for public-relations assistance; LSA provided Mowery copies of the Resolution and Suspension Letter.
- Four days after learning of the suspension, Davis informed the Board he intended to resign effective September 23, 2017, then sued LSA and two board members alleging race discrimination (§ 1981 and Title VII) and defamation.
- The district court granted summary judgment for Defendants, holding paid suspension with pay was not an adverse employment action, Davis was not constructively discharged, and the disclosure to Mowery did not constitute publication under Alabama defamation law.
- Defendants filed a bill of costs after judgment and cross‑appealed the district court’s silence on costs; the Eleventh Circuit affirmed the summary judgment and dismissed the cross‑appeal as premature.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a paid suspension (pending investigation) is an adverse employment action | Davis: the suspension’s surrounding circumstances (public disclosure to Mowery, timing, a suspension letter, security guard, and his status as LSA’s public face) made it adverse | Defendants: a simple paid suspension is not an adverse action; the surrounding circumstances do not elevate it | Paid paid suspension is not an adverse employment action here; circumstances did not convert it into one |
| Whether Davis was constructively discharged | Davis: the suspension and ensuing events made working conditions intolerable, forcing his resignation | Defendants: resignation was voluntary, not provoked by intolerable conditions; Davis quit too soon to allow remedial measures | No constructive discharge; reasonable factfinder could not conclude conditions were so intolerable as to force resignation |
| Whether giving the Resolution and Suspension Letter to Mowery was publication for defamation under Alabama law | Davis: disclosure to Mowery amounted to publication of defamatory material | Defendants: Mowery acted as LSA’s consultant/agent for PR; disclosure was within that relationship and not publication to a third party | No publication as a matter of law; disclosure to consultant acting as agent does not satisfy publication element under Alabama law |
| Whether the district court erred by failing to award costs (cross‑appeal jurisdiction) | Davis: district court’s silence and local rules allow prevailing party to file bill of costs postjudgment | Defendants: district court’s silence is effectively a denial and they are presumptively entitled to costs under Rule 54(d) | Cross‑appeal dismissed as premature; costs not finally determined and district court must act on bill of costs first |
Key Cases Cited
- Monaghan v. Worldpay US, Inc., 955 F.3d 855 (11th Cir. 2020) (defines ‘‘tangible’’ adverse employment actions that affect continued employment or pay)
- Green v. Brennan, 578 U.S. 547 (U.S. 2016) (constructive discharge treated as actual discharge when conditions would compel reasonable person to resign)
- Joseph v. Leavitt, 465 F.3d 87 (2d Cir. 2006) (paid leave alone does not constitute adverse employment action)
- Brackin v. Trimmier L. Firm, 897 So. 2d 207 (Ala. 2004) (disclosure to a retained investigator/consultant falls within agency relationship and is not publication for defamation)
- Quigg v. Thomas Cnty. Sch. Dist., 814 F.3d 1227 (11th Cir. 2016) (mixed‑motive framework requires proof an adverse employment action occurred)
- Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53 (U.S. 2006) (retaliation adverse‑action standard is more relaxed than discrimination standard)
- Kilgore v. Thompson & Brock Mgmt., Inc., 93 F.3d 752 (11th Cir. 1996) (constructive discharge generally not found if employer given insufficient time to remedy)
- Mekdeci v. Merrell Nat’l Lab’ys, 711 F.2d 1510 (11th Cir. 1983) (district court’s decision on costs is not final until amount is fixed)