Sheila PEARSON, Plaintiff-Appellant,
v.
MACON-BIBB COUNTY HOSPITAL AUTHORITY; Medical Center of
Central Georgia and Damon H. King, Individually and in his
official capacity as the Administrator of the Medical Center
of Central Georgia, Defendants-Appellees.
No. 90-8966.
United States Court of Appeals,
Eleventh Circuit.
Feb. 3, 1992.
Christopher Coates, Milledgeville, Ga., for plaintiff-appellant.
H. Lane Dennard, Jr., King & Spalding, Kirk D. McConnell, Margaret H. Campbell, Ogletree, Deakins, Nash, Smoak, & Stewart, Atlanta, Ga., for defendants-appellees.
Appeal from the United States District Court for the Middle District of Georgia.
Before TJOFLAT, Chief Judge, BIRCH, Circuit Judge, and HILL*, Senior Circuit Judge.
BIRCH, Circuit Judge:
This appeal is from the grant of summary judgment by the United States District Court for the Middle District of Georgia, in favor of defendants in a suit brought by an employee of a publicly funded hospital who was allegedly subject to discrimination in a discharge from employment. For the reasons that follow, we find that material questions of fact remain for resolution with respect to the issue of equitable tolling of the prescribed filing period, as well as the merits of the plaintiff-appellant's claims under Title VII, 42 U.S.C. §§ 2000e to 2000e-17 (1988), and the Equal Protection Clause of the Fourteenth Amendment. U.S. Const. amend. XIV, § 1; see 42 U.S.C. § 1983 (1988). We REVERSE and REMAND for further proceedings.
I. BACKGROUND
Appellant Sheila Pearson, who is a black person, was employed at the Medical Center of Central Georgia from 1976 until her discharge in January 1986. At the time of the incident precipitating her termination, appellant held the position of senior staff nurse, and performed work as a charge nurse in the operating room ("O.R."). Her duties included preparing the O.R. for surgery, coordinating the availability of staff needed for procedures, and checking the cleanliness of the O.R. area. Due to the higher level of her position, appellant was also called upon to perform in a supervisory capacity.
Appellant's termination stemmed from an event involving several nurses in which a package of contaminated surgical instruments was left untended in the O.R. area. On the afternoon of September 13, 1985, an O.R. technician assisted in a surgical procedure that yielded a bundle of contaminated instruments, then failed to remove the instruments to the O.R. sterilization area (as was her duty) in her haste to assist in another procedure. Another nurse, serving as "outside circulator" during the surgical procedure subsequently enclosed the instruments in a sheet but also failed to remove them for cleaning. A third nurse, working as charge nurse during the evening of the same day, failed to discover the instruments during her rounds of the O.R. Hence, the instruments were left in the hallway outside the O.R. and remained there until the 9:00 p.m. to 9:00 a.m. shift worked by the appellant. Appellant, too, despite having a duty to make rounds in the O.R., neglected to discover and remove the instruments during her shift, and they remained in their inappropriate location until discovered by a nurse working a shift on the morning of September 14.
As a result of the incident, appellant and the other three nurses, who are white persons, received oral warnings for neglect of duty from their immediate supervisor, Mary Freeman. Freeman issued this reprimand to appellant in a September 19 meeting. Not long after receiving Freeman's reprimand, appellant attended a seminar in which she criticized the failure of her superiors to adequately supervise the cleaning responsibilities of the O.R. nurses. Also shortly after her meeting with Freeman, the appellant submitted a written response to Freeman's reprimand dated October 6, in which she asserted that ultimate blame for the incident lay with the O.R. technician and urged that the assignment of O.R. duties be clarified in the future. Meanwhile, Freeman discussed the underlying incident, as well as general complaints about appellant's disruptive behavior in the workplace with an Assistant Administrator, Sylvia Bond, who agreed with Freeman that the appellant should be terminated from O.R. duties and directed Freeman to meet with the Director of Medical-Surgical Nursing, Lavonne Harn. On the basis of Freeman's criticisms of appellant, Harn and Freeman decided to require appellant to choose between resigning or transferring to another section of the hospital. Also at some point during this time frame, Bond met with Daymon King, Administrator of the Medical Center, and briefed him on the planned action against appellant. Beyond the initial oral warnings given in September, no equivalent action was taken against any of the other nurses involved in the September 13 incident.
In accordance with their determination, Freeman and Harn met with appellant on October 16 to notify her of their decision and to explain the options available to her, informing her that she could resign to seek employment at another hospital, apply for a transfer within the Medical Center, or, in the event she refused either option, be terminated. Appellant informed Freeman two days later that she wished to transfer to another hospital section. Appellant then sought a position in the hospital's Emergency Center but was told that no opening was available in that area. When offered a job in one of the Urgent Care Centers, the appellant declined the position due to time conflicts that would arise with her responsibilities at home.
Thereafter, appellant took a medical leave of absence from the Medical Center and, after her leave and benefit time was exhausted, was ultimately administratively terminated on January 21, 1986.
On April 28, 1986, 194 days after notice of termination, appellant filed a discrimination claim with the Equal Employment Opportunity Commission ("EEOC"). Therein she named as defendants the Medical Center, the Macon-Bibb County Hospital Authority (a public entity that operates the Medical Center), and King, individually and officially in his capacity as Administrator of the Medical Center (having ultimate responsibility for personnel decisions). In her complaint, Pearson alleged violations of an asserted federal proscription under 42 U.S.C. § 1981 (1988) of discriminatory discharge in private employment contracts, procedural due process rights, substantive due process rights, First Amendment rights, Title VII, and the Fourteenth Amendment right of equal protection. On each of these claims the district court granted defendant-appellees' motion for summary judgment.1 We address each issue in turn, undertaking a plenary review of whether there is no genuine issue as to any material fact and whether the appellees are entitled to judgment as a matter of law. Carlin Communication v. Southern Bell,
II. DISCUSSION
A. The 42 U.S.C. § 1981 Claim
In granting summary judgment below, the district court addressed the merits of Pearson's claims under 42 U.S.C. § 1981 for discriminatory discharge.2 Our review of the district court's decision, however, need not reach the merits, as appellant's § 1981 claim fails legally under the Supreme Court's intervening ruling in Patterson v. McLean Credit Union,
In Patterson, the Court addressed the scope of § 1981 as applied to employment contracts, and held that
§ 1981 ... covers only conduct at the initial formation of the contract and conduct which impairs the right to enforce contract obligations through legal process.
B. The First Amendment Claim
Appellant's complaint also asserted a free speech claim, alleging that the Medical Center's action against the appellant was taken in retaliation for comments critical of overall operating room cleanliness and her supervisors' assignment of cleaning responsibilities. On appeal, Pearson contends that the district court erred in ruling that she failed to create any genuine issue of material fact as to the elements set forth in Connick v. Myers,
The threshold question of whether such speech "relate[s] to matters of public concern is a question of law, and is therefore, readily susceptible to disposition on summary judgment." Ferrara v. Mills,
Indeed, authorities relied upon by the appellant in support of her claim illuminate this distinction between public concern and personal interest. In Maples v. Martin,
In the context presented here, neither generalized health concerns nor "a supposed popular interest in the way public institutions are run," Ferrara,
C. The Title VII Claim
Appellant's Title VII claim was defeated not on the merits, but rather on the basis of appellant's failure to file her claim within the statutorily prescribed period. Title VII provides that a person wishing to file a discrimination claim with the EEOC must do so within 180 days of the alleged unlawful employment practice. 41 U.S.C. § 2000e-5(e). The district court entered summary judgment in view of this filing requirement, noting that Pearson filed her claim more than 180 days after the October 16 meeting in which she was informed of the Medical Center's decision to require her to resign, transfer, or be terminated.
Pearson argues that the precise "unlawful employment practice" at issue occurred when she was terminated in January--a formulation that brings her claim well within the filing deadline. In light of Delaware State College v. Ricks,
In short, the equivocal character of the adverse employment decision of October 16 does not deprive that decision of its status as the operative act. Thus, even though the termination of Pearson's employment was not inevitable upon the passing of a designated date (as it was for the academicians in Ricks and Chardon ) the distinctive fact that she was offered an opportunity to seek a transfer is relevant only to the availability of equitable modification of the deadline, and not the determination of when the alleged underlying discriminatory act occurred.
In connection with the propriety of an equitable tolling of the running of the time period, appellant principally directs our attention to Cocke v. Merrill Lynch & Co.,
while the employer is actively trying to find a position within the company for the employee, the ... filing 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.
* * * * * *
It is too much for the law to expect an employee to sue his employer for age discrimination at the same time he is led to believe the employer is trying to place him in another job.
Id. at 1561-62. The instant case, in which appellant was invited to seek a transfer as an alternative to termination, cannot in principle be distinguished from Cocke.5 Accordingly, we find that Cocke mandates trial on the issue of the availability of equitable tolling on these facts in accordance with settled standards. See generally Reeb v. Economic Opportunity Atlanta, Inc.,
Also relevant to the survival of appellant's Title VII action is the district court's determination, in considering her § 1981 and § 1983 claims, that she failed to establish that she was similarly situated with the three white employees involved in the contaminated instruments incident (none of whom were discharged). A Title VII plaintiff may make out a prima facie case by a showing of disparate treatment among similarly placed employees. McDonald v. Santa Fe Trail Transp. Co.,
Based on the precedent of Rhode v. K.O. Steel Castings, Inc.,
What is relevant is that two employees are involved in or accused of the same offense and are disciplined in different ways. Differences in job status and skill may well have an impact on the second phase of proof [in which the employer must produce a legitimate reason for the different treatment] but they should not defeat a prima facie case....
Id. at 322. Given that all four nurses involved in the neglect of the contaminated instruments on September 13 were responsible for the cleanliness of the O.R. area and noting that the hospital retained a white nurse who had initial and primary responsibility for the instruments in question, we cannot in reason hold that appellant's higher employment position in itself defeated her prima facie case.
Our examination of the record also precludes summary judgment on the ground that appellees have proffered legitimate, non-disciminatory reasons for appellant's discharge. "[S]ummary judgment is not a proper vehicle for resolving claims of employment discrimination which ... turn on an employer's motivation and intent." Delgado v. Lockheed-Georgia Co.,
For these same reasons, we disagree with the district court's disposition of appellant's claim for damages under the Equal Protection Clause pursuant to 42 U.S.C. § 1983. In an action proceeding under both Title VII and § 1983, the substantive elements of proof are the same under both statutes. Palmer v. District Bd. of Trustees of St. Petersburg Junior College,
Appellees, seeking affirmance on another ground, rely on the principle that an isolated employment decision by a public entity official may expose the entity itself to liability under § 1983 only when that decision was governed by institutional policy. See City of St. Louis v. Praprotnik,
The record discloses, however, a genuine issue as to King's role in the adverse employment decision. Notwithstanding the appellant's failure to appeal through the grievance procedure, there remains a material question as to whether King ratified the decision ab initio. If King, as final policymaker and the ultimate arbiter of employment appeals, did in fact ratify the action against appellant, appellees cannot now be heard to complain that appellant failed to avail herself of a process leading back to the same final decisionmaker.7 King's deposition reveals that Assistant Administrator Sylvia Bond discussed the action with him before communicating the decision to the appellant. R1-9-12-13. Bond's affidavit, moreover, reveals her recollection that King expressed agreement with the proposed action in the same meeting. R1-13 (Bond Aff.-3). So far as it can be shown that King exercised his authority by ratifying the decision, appellant's equal protection claim will survive under Praprotnik.8 Hence, summary judgment is precluded by genuine issues that remain with respect to King's possible ratification of the employment decision against appellant.9
III. CONCLUSION
For the foregoing reasons, we REVERSE the district court's grant of summary judgment with respect to appellant's claims under Title VII and the Equal Protection Clause and REMAND for resolution of these claims.
Notes
Judge James C. Hill was a member of the panel which heard oral argument but recused himself following oral argument and did not participate in this decision. The case is decided by a quorum. See 28 U.S.C. § 46(d)
In her brief, appellant does not assign error to the district court's determination with respect to the procedural and substantive due process claims. The district court determined that appellant was an at-will employee, and as such lacked a property interest in her job. Thus, she had no right to procedural or substantive due process in connection with her discharge. Hatcher v. Bd. of Pub. Educ. and Orphanage,
Section 1981, as interpreted in Runyon v. McCrary,
Also on point is Supreme Court precedent barring claims for damages under § 1981 against public entities. The Supreme Court has ruled that "the express cause of action for damages created by § 1983 constitutes the exclusive federal remedy for violation of the rights guaranteed in § 1981 by state governmental units...." Jett v. Dallas Indep. Sch. Dist.,
We note that the appellant's complaint in district court specifically alleged a violation of the right to petition the government for redress of grievances. Since the arguments below and before this court have taken up the free speech issue instead of that right, we, like the district court, will overlook the appellant's mischaracterization of her claim in the original complaint
The district court distinguished the present case from Cocke on grounds that "[e]ven if the plaintiff had transferred to a new job the alleged discriminatory act would still have occurred." R1-22-8. This distinction, however, does not negate the relevance of Cocke. The fact that Pearson identifies the October 16 communication of alternatives as the alleged discriminatory act ex post does not answer the relevant question: whether she reasonably believed at the time (and perhaps for some time thereafter) that she would be favorably transferred so as to obviate any discrimination charge. Disputed facts foreclose summary judgment on this question
Viewing the evidence in the light most favorable to the appellant, see Sweat v. Miller Brewing Co.,
Praprotnik, erroneously relied upon by appellees, held that supervisors authorizing the discharge did not establish policy for the city-employer where an appeal to a distinct, higher authority (an appeals commission) was available. See Praprotnik,
Appellees' assertion that Pearson was not personally aware of King's role at the time of the decision is also unavailing. Relevant cases do not endorse an inquiry into scienter. At issue is the objective question whether King's involvement constituted an adoption of the decision by an officer with final policymaking authority. See Monell,
These same facts of record raise genuine issues of fact which prevent the grant of summary judgment to appellee King in his individual capacity
An equal protection claim will prevail only upon a showing of intentional discrimination. Personnel Adm'r v. Feeney,
In passing, we note that the Supreme Court, with a recent decision, squarely confirmed that a state official may be held personally liable for damages under § 1983 for employment decisions made in his official capacity. Hafer v. Melo, --- U.S. ----, ----,
Appellees urge us to dispose of this question at summary judgment, relying on the Praprotnik plurality's instruction that the determination of a municipality's "power structure," i.e., the determination of where policymaking authority lies, is a question of state law. Praprotnik,