Lyes v. City of Riviera BeachLyes v. City of Riviera Beach
Lead Opinion
We granted the defendant’s petition for rehearing en banc in this employment discrimination case to decide two issues. The first is whether women are a protected class for
The second issue concerns the test applicable for deciding whether the employees of two employers are to be aggregated for determining if the minimum number of employees exist for Title VII coverage. We hold that the “single employer” aggregation test adapted from cases involving the NLRB, in which the employers are always private entities, is not applicable to those Title VII cases in which the employers are state and local government entities. For those cases we adopt a different test, one which presumes public entities that are separate under state law will not be aggregated for Title VII purposes. The plaintiff may rebut that presumption, however, by showing either: 1) that the state’s purpose for separating the entities under state law was to evade Title VII, or 2) that the entities are so closely related with respect to the fundamental aspects of employment relationships that the presumption in favor of the state law’s denomination is clearly outweighed.
Applying that test to the public entity that employed the plaintiff in this case, we find there is not enough evidence of interrelatedness to allow a reasonable fact finder to conclude that the presumption in favor of the state’s denomination of the entity as separate and distinct from any other state or local body is clearly outweighed.
I. FACTS AND BACKGROUND
Because the factual and legal background of this casе is more fully set forth in the panel opinion, Lyes v. City of Riviera Beach, Florida,
The district court granted summary judgment for the defendants on all. of the federal claims, and dismissed the state law claims without prejudice under
The panel held that Lyes’ §.1983 claims were based at least in part on the Equal Protection Clause, not solely on the Due Process Clause as the district court had thought. Accordingly, the panel remanded the
With regard to Lyes’
As to the Title VII claim, the panel agreed with the district court that the single employer aggregation test developed in the NLRB context should be used to determine whether the CRA and the City are a single employer for Title VII jurisdictional purposes. See id. at 1385-86. However, the panеl disagreed with the district court on the result of applying that test to the facts of this case and concluded there was a genuine issue of material fact as to whether the CRA and the City are a single employer. See id. at 1386. We discuss those issues in Part III of this opinion.
II. WHETHER WOMEN ARE A PROTECTED CLASS UNDER
Lyes claims that the defendants’ actions constituted a conspiracy to deprive her of equal protection of the laws in violation of
We begin our discussion by addressing the question of whether women are a “class of persons” within the meaning of
With regard to the scope of
If two or more persons in any State or Territory conspire, or go in disguise on the highway or on the premises of another, for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws..., the party so injured or deprived may have an action for the recovery of damages, occasioned by such injury or deprivation, against any one or more of the conspirators.
Lyes argues that the textual similarity between the statute and the Equal Protection Clause of the Fourtеenth Amendment, coupled with the fact that the statute was passed just three years after the Fourteenth Amendment was ratified, indicates Congress intended the scope of the statute to be coextensive with that of the Fourteenth Amendment, which prohibits sex-based classifications unless they “serve important governmental objectives and [are] substantially related to achievement of those objectives.” Craig v. Boren,
“In construing a statute we must begin, and often should end as well, with the language of the statute itself.” United States v. Steele,
Our enthusiasm for applying the plain meaning canon to
Consistent with the gloss it placed on the statutory language in Griffin, the Court held in Scott that
Thus, Griffin and Scott left open the issue we confront today, namely, whether a conspiracy motivated by sex-based animus against women is actionable under
Because the statutory language of
Given prevailing attitudes at the time
Any conclusion that women are not a protected class under
The grand tally is this. Of the circuits that have squarely confronted and decided the issue, seven have held that women are a protected class of persons under
Even though the views of individual Justices are not binding on us, see, e.g., United States v. Stewart,
In addition, although the majority opinion in Bray does not explicitly hold that women are a protected class under
For all of the stated reasons, we conclude that women are a “class of persons” within the meaning of
Judge Tjoflat concedes that the Thirteenth Amendment provides Congress with a valid basis for enacting
For all of the reasons stated, we hold that sex-based conspiracies against women are actionable under
III. WHETHER THE COMMUNITY REDEVELOPMENT AGENCY AND THE CITY SHOULD BE COUNTED TOGETHER AS AN “EMPLOYER” UNDER TITLE VII
A.
We turn now to the question whether the Community Redevelopment Agency (the “CRA”) and the City should be aggregated and considered as a single “employer” under Title VII’s definition of that term. Title VII defines “employer” as “a person engaged in an industry affecting commerce who has fifteen or more employees for each working day in each of twenty or more calendar weeks in the current or preceding calendar year, and any agent of such a person....” See
It is undisputed that the CRA itself, during the relevant time, did not employ a sufficient number of individuals to fall within the statutory definition of “employer.” It is also undisputed that if the CRA and the City are counted as one, collectively they employ enough people to meet that definition. Lyes argues that the two entities should be aggregated and treated as a single “employer” under Title VII, because the CRA and the City are interrelated in their operations and both entities exercised substantial control over her conditions of employment. By contrast, the CRA and the City contend that they are separate and distinct legal entities and should be treated as such, which would remove the CRA from Title VII’s definition of “employer” and effectively deprive us of jurisdiction over that claim in this case. We must therefore decide what test applies in determining whether separate state or local governmental entities should be counted as a single “employer” for purposes of meeting the statutory definition under Title VII.
B.
We accord a liberal construction to the term “employer” under Title VII. See Virgo, 30 F.3d at 1359; McKenzie v. Davenport-Harris Funeral Home,
We have identified three circumstances in which it is appropriate to aggregate multiple entities for the purposes of counting employees. First, where two ostensibly separate entities are “ ‘highly integrated with respect to ownership and operations,’ ” we may count them together under Title VII. McKenzie,
The issue before us involves the “single employer” test.
C.
However useful the four-factor NLRB “single employer” test may be in Title VII cases where private entities are concerned, the question we face is the different one of whether that test should be applied where state and local governmental entities are concerned. In answering that question, we are aware of Congress’s unmistakable intent that “Title VII principles be applied to governmental and private employers alike.” Dothard v. Rawlinson,
But we are also aware of the unmistakable reality that in certain key respects, governmental entities aré different from private ones. We will discuss some of those differences later. For now, it is worth noting that equal treatment consists not only of treáting like things alike, but also of treating unlike things differently according to their differences. This is a proposition whose provenance stretches back to antiquity, see, e.g., Aristotle, The Nicomachean Ethics, E.6.1131a-1131b (M. Ostwald trans.1962), and it has as much logical force now as it had in Aristotle’s day. If we are to apply Title VII’s principles equally to governmental and private employers in a fair and intelligible manner, we must apply those principles in a way that respects the differences between private and public entities. See also Riley v. County of Pike,
The four NLRB factors are useful for counting employees of private entities under Title VII, precisely because the test was “developed by the National Labor Relations Board to determine whether consolidation of separate private corporations is proper in determining the relevant employer” under the NLRA. Owens,
The most obvious way in which the NLRB “single employer” test is incompatible with cases involving governmental entities involves the test’s fourth factor&emdash;“common ownership or financial control.” McKenzie,
Nor is the NLRB test’s third factor, “common management,” McKenzie,
In addition to the fact that these two prongs do not make sense in the context of state and local governmental entities, there is another, perhaps more fundamental reason for not applying the NLRB test. That reason involves federalism and comity concerns, which should play a significant role in determining whether to treat as one body two governmental entities that are separate and distinct under state law. When it comes to creating subordinate public bodies and defining their relationship to one another and to itself, “ ‘the state is supreme and its legislative body, conforming its action to the state Constitution, may do as it will.’” City of Trenton v. State of New Jersey,
In rejecting the four-factor NLRB test as a means of determining whether two or more governmental entities should be aggregated for the purposes of determining if they are an “employer” under Title VII, we do not mean to suggest that the two remaining prongs of the test, interrelation of operations and centralized control of labor relations, are not relevant to our inquiry in any way. But where state or local governmental entities are involved, any indicia of integration must be considered in a framework that is sensitive to the differences between governmental subdivisions and private entities. See Trevino,
D.
Given our conclusion that the traditional NLRB four-factor test is not readily applicable to the question of whether to aggregate state and local governmental entities for Title VII purposes, we must decide what standard or test should apply in its place.
The strong comity and federalism concerns we have mentioned require that we accord substantial deference to a state lawmaking body’s determination of whether two or more governmental entities are separate and distinct. We should not brush aside a state’s own distinctions between its governmental subdivisions, because even ostensibly formal distinctions are part of a gоvernment’s ability to shape its own institutions within constitutional bounds, and we are obligated to respect a state’s right to do so. See McMillian,
We think that where a state legislative body creates a public entity and declares it to be separate and distinct, that declaration should be entitled to a significant degree of deference, amounting to a presumption that the public entity is indeed separate and distinct for purposes of Title VII. The presumption may be rebutted in some instances. In particular, if it is established that a state’s purpose in creating or maintaining nominally separate entities was to evade the reach of the federal employment discrimination laws, that alone is enough for those entities to be aggregated when counting employees.
Even absent an intent to evade the application of federal law, we will aggregate two or more governmental entities and treat them as a single Title VII “employer” where other factors so plainly indicate integration that they clearly outweigh the presumption that the entities are distinct. In order to determine which factors should be considered in deciding whether the plаintiff has
Despite the primacy of the NLRB test as applied to private employers under Title VII, “[c]ourts have used numerous formulations in assessing whether a defendant is an ‘employer’ within the meaning of Title VII and other employment discrimination statutes.” Rivera,
Thus, two or more state or local governmental entities will be treated as a single “employer” under Title VII where one entity exerts or shares control over the fundamental aspects of the employment relationships of another entity, to such a substantial extent that it clearly outweighs the presumption that the entities are distinct. Several factors will guide our determination of whether the presumption in favor of the distinctness of the public entities is clearly outweighed&emdash;or, at the summary judgment stage, whether a finder of fact could reasonably conclude that it is clearly outweighed. As we have already noted, the NLRB factors of “interrelation of operations” and “centralized control of labor operations,” McKenzie,
To summarize, we hold that when assessing whether multiple governmental entities are a single “employer” under Title VII, we begin with the presumption that governmental subdivisions denominated as separate and distinct under state law should not be aggregated for purposes of Title VII. That presumption may be rebutted by evidence establishing that a governmental entity was structured with the purpose of evading the reach of federal employment discrimination law. Absent an evasive purpose, the presumption, against aggregating-separate public entities will control the inquiry, unless it is clearly outweighed by factors manifestly indicating that the public entities are so closely interrelated with respect to control of the fundamental aspects of the employment relationship that they should be counted together under Title VII.
The standard we adopt is not whether a fact finder reasonably could conclude the plaintiff has overcome the presumption. Instead, the standard is whether the fact finder reasonably could conclude the plaintiff has clearly overcome the presumption. The adverb “clearly,” which derives from the federalism concerns we have discussed, is meant to be limiting. It is a thumb on the scale, and sometimes it will be decisive because federalism concеrns should sometimes be decisive. Absent evidence of evasive purpose, in order to survive a motion for summary judgment, a plaintiff will have to show that a reasonable fact finder could conclude that the
E.
Applying this test to the present case, we conclude that Lyes has not adduced sufficient evidence to allow a reasonable fact finder to conclude that the City and the CRA should be treated as a single “employer,” bringing them within the coverage of Title VII.
Florida law establishes a presumption that the CRA and the City are separate and distinct bodies. As the district court noted, the State legislature created community redevelopment agencies as independent legal bodies, iSee
Looking at the nature of Lyes’s employment relationship itself, we conclude that she has not produced evidence of interrelatedness with regard to control over employment sufficient to permit a reasonable fact finder to conclude that the presumption that the governmental entities are distinct is clearly outweighed. The CRA Board of Commissioners and its Executive Director control the fundamental aspects of employment of the CRA’s staff. The Executive Director hires and supervises the staff, and the Board may hire, fire, and establish work schedules and assignments. The Executive Director is employed by the CRA, and he serves at the pleasure of the CRA Board, not at the pleasure of the City. Employees of the CRA receive their medical benefits, life insurance and pension plans from the CRA, not from the City. Lyes was disciplined, suspended and eventually terminated by the Executive Director of the CRA, and that decision was upheld by the CRA Board, not by the City. All of these circumstances establish that the CRA retained and exercised control over the fundamental aspects of its employee relations.
Second, the panel noted that Neil Crilly, the CRA Executive Director, sought review from the City’s personnel director of his decision to discipline Lyes. We agree with the district court’s conclusion that there was no indication that this review had any binding effect. Instead, it appears to have been an effort to seek the opinion of a third party as to whether Crilly had acted fairly in disciplining Lyes. In this sense, Crilly’s action is not unlike seeking advice from an expert in employee relations.
Viewing the totality of the circumstances, we readily conclude that Lyes has not produced evidence sufficient to allow a reasonable fact finder to conclude that the presumption that the CRA and the City are separate entities is clearly outweighed and that they should therefore be treated as a single employer under Title VII.
F.
Having decided the issues upon which we granted en banc review, we REMAND this case to the panel for further proceedings not inconsistent with this decision.
TJOFLAT, Circuit Judge, concurring in part and dissenting in part, in which BIRCH, Circuit Judge, joins:
This case requires us to interpret the scope of
I.
The broad reading of the majority’s holding is that any person injured by a conspiracy to commit a tort arising out of sex-based animus has a cause of action under
The Supreme Court has warned us about “[t]he constitutional shoals that would lie in the path of interpreting
The greatest potential intrusion, however, would be in the area of workplace discrimination and sexual harassment. The federal courts are already involved in these areas through Title VII. The reach of Title VII, however, is limited in a variety of ways — for instance, it creates liability only for “employers” as defined under the statute, see
This federal usurpation of state sovereignty implicates the core constitutional idea of federalism. Under our constitutional system, the federal government is a government of limited powers, and all powers not given to the federal government are reserved to the states. See
It is clear that
One possibility is to base 1985(3) on Congress’ power under section 5 of the Fourteenth Amendment to enforce that amendment’s guarantee of equal protection.
The other usual suspect for legislation of this sort is the Commerce Clause. See
No other constitutional provisions appear to be colorable candidates. Thus, I am forced to conclude that Congress does not have the authority to create a remedy for all persons harmed by conspiratorial tortious conduct arising from sex-based animus.
II.
The majority’s holding may be read more narrowly to mean that
The plain language of the statute says absolutely nothing about a state action requirement.
Most importantly, the Supreme Court precedent interpreting
In sum, imposing a state action requirement on
III.
The majority says that it will “leave for another day and case the issue of whether [
The majority boxes us into this corner by trying to decide this case without defining the scope of
Notes
. While the views of other circuits are not binding upon us in any event, we do accord them respect. But we give views espoused as mere dicta less respect than we give those that are forged as part of the holding in a case. See McDonald's Corp. v. Robertson,
. In his dissenting opinion, Judge Tjoflat flails away at two strawmen he has constructed. One he labels "the broad reading of the majority's holding” and describes as the application of
Judge Tjoflat’s dissenting opinion also attacks tire "read more narrowly” strawman, which he characterizes as inserting a state action requirement into
. Some judges in other circuits have doubted whether the number of employees is a jurisdictional question. See Sharpe v. Jefferson Distrib. Co.,
. Lyes argued before the district court and the panel that the “agency” test might also be relevant in this case. Maybe, but some of the same factors discussed below that make the usual “single employer" test (the NLRB test) difficult to apply in cases involving related governmental entities may also make the usual agency test a poor fit where public entities are concerned. In any event, we do not decide any agency issues, because the panel did not reach them, see.
. Courts applying the NLRB "single employer” test to private entities in Title VII cases have held that not every factor need be present, and no
. In Dumas v. Town of Mt. Vernon, Ala.,
. See also Massey,
. We are not required to decide in this case, and we express no view about, whether this or some different test should apply to aggregation issues involving federal governmental entities.
. In treating the question of whether the City and the CRA are a single Title VII "employer” as a question of fact, we follow the practice of this Court in analogous Title VII cases involving private employers. See, e.g., McKenzie,
. Moreover, these two entities are more than formally distinct. As the district court pointed out, the CRA maintains separate bank accounts and records, and files its own tax returns. It prepares its own budget and keeps its own offices. It is true that the City provides the majority of die CRA’s funding, but we have already concluded here that the source of a governmental entity's funding is a poor indication of whether it should be aggregated with another; in any event, the CRA still receives close to one-third of its funds from a source other than the City.
. In reaching its conclusion, the panel also relied heavily on the NLRB factors of common management and financial control. See
. The majority avoids choosing between these two interpretations by holding that "sex-based conspiracies against women are actionable under
. The statute creates a remedy for persons injured by a conspiracy to "depriv[e] ... any person or class of persons of the equal protection of the laws."
. I realize that i£, under these factual scenarios, females were replaced with African Americans, there would be no question that
. The potential use of
. The underlying torts in these three examples are, respectively, wrongful termination, battery, and intentional infliction of emotional distress.
. In Griffin, the Supreme Court explicitly avoided the question of whether
. The only way in which
. As the majority points out, see ante at 1338-39, a number of other circuits have interpreted
. Indeed, such a reading of
. Of course, the plain language of the statute also says nothing about discriminatory animus; nevertheless, the Supreme Court has read a discriminatory animus requirement into the statute. See Griffin,
. The statutory language argument is made even more powerful when
. The majority opinion is notably bereft of precedent for the proposition that state action has any relevance in a
. I also note the patent inconsistency of reading a single statute as requiring state action in one situation (sex discrimination) but not another (race discrimination). Such a reading in essence converts
. The majority steadfastly resists the idea that it might be reading a state action requirement into
Concurrence in Part
concurring in part and dissenting in part, in which COX, BIRCH and DUBINA, Circuit Judges, join:
The Civil War came close to destroying the United States forever. The War was a brutal physical contest, in which valor was common on both sides. Our great nation was preserved, but at a terrible price. For example, in the four years of the War, the federal army of about 1,500,000 troops suffered 634,-703 casualties (359,528 dead and 275,175 wounded).
One issue over which the War had been fought was slavery. The fate of slaves, recently freed at such severe cost to the Union, was a great concern during the Reconstruction era. Radical Reconstruction was rough for southern whites. Some strongly resented the political influence of freed slaves and of thоse persons working with freed slaves. There was resistance, and organizations such as the Ku Klux Klan arose in the South. These organizations engaged in terroristic conduct. This conduct was aimed at intimidating the freed slaves and their white allies. The allies were often former union soldiers and mostly Republicans. These hard realities made up the situation Congress (dominated by northern Republicans) faced in 1871 when it enacted the Ku Klux Klan Act, including what is now
Our job in construing a statute is to determine congressional intent. In my view,
The question today is whether
Since 1983, no new information has come to light that would make this court better informed about the intent of the 1871 Congress than the Supreme Court was informed in 1983.
To extend
I believe that we do our duty when we admit that we do not know whether certain conduct was intended by Congress to be covered by a statute or not. We cannot properly do more in this case. I accept the principle that Congress and the President— political officers elected by the American people — should decide public-policy questions, such as the one underlying this case. The political branches (and not the judicial branch) should decide whether a federal statute — along the lines of
When I disagree with the court, I commonly file no dissent. Dissenting is rarely the best use of the judge’s time and energy. Dissents can also be counterproductive in other ways. If the legal principles involved seem to me to be important enough, I may write something, however. Even then, because my dissent will govern no one (not even me) while the court’s opinion will govern everyone in three states, I sincerely hope that the court’s view of the case is the correct one — setting out the true law — and that my view is the incorrect view. I know that my colleagues’ motives are good. But for the reasons I have tried to explain briefly, I cannot today go along completely.
I concur in this court’s opinion and judgment, except the part about
. By way of comparison, a much more populous United States, with a much larger military, fighting worldwide, suffered a loss of 292,131 dead in World War II.
. This case concerns the scope of the cause of action made available by
. Plaintiff is a white woman. At its core, the section was intended to protect blacks and those who supported blacks; thus, white women, along with everyone else, are doubtlessly protected by the statute as long as they are being conspired against on account of helping a racial group. The question presented in this case then is not whether women are protected by the statute (they are), but whether the statute extends protection to women (or to anyone else) in this kind of case.
. The Supreme Court in Scott was unpersuaded by a "plain-language” argument that conspiracies not based on race are included in 1985(3). So am I.
The plain-language doctrine of statutory interpretation is usually best to determine the true intention of Congress, but judges usually are looking at statutes enacted by — at least roughly speaking — their own contemporaries. As contemporaries, we share with the pertinent Congress basically the same environment of circumstances and facts that surrounded the enactment of the statute; and when we see in the statute's words an unambiguous plain meaning, we see that plain meaning in the light of our shared contemporary conditions. But as I have observed, "[wjhen ... much older statutes are being construed by modern courts, our response as modern readers to the words of the statute may not be what the words meant to the Congress speaking at a very different time.” United States v. Steele,
When we are looking at a statute that is almost 130 years-old, we know that, in the meantime, conditions and ideas have changed; the passage of time is enough to inject considerable uncertainty in my mind about the meaning of what the 1871 Congress said with the statute. Just reading the words today is not enough to know what the words used in 1871 meant to that Congress. Congress’s intent at the time of the statute's enactment cannot be reliably ascertained without taking into account the historical context of the statute.
.I do not say that the Supreme Court's words in Scott can be read as a holding which is binding on us, but the Court's words have consequence. Furthermore, I agree with the Supreme Court. The arguments made to support a construction of 1985(3) to extend beyond race are not compelling.
Some argue that the section’s protections track the protections of the Equal Protection Clause of the Fourteenth Amendment, which the Supreme Court has construed to go beyond race. But,
Others point out bits of legislative history that they say show a broader intent. The legislative history — which is filled with references to freed slaves and their supporters and to the Klan — is long. The bits that might be said to point beyond race are very few and short. And, the statements of individual legislators are not ordinarily given controlling effect. See, e.g., Brock v. Pierce County,
Some others say that, even if it is true that the 1871 Congress did not have in mind discrimination against persons other than black people when Congress enacted
Never has the Supreme Court decided whether
. Quod dubitas, ne feceris. S.S. Peloubet, Legal Maxims 253 (1985); Black's Law Dictionary, 1127 (5th Ed.1979).
. By the way, although the Supreme Court signaled in 1983 that it was by no means clear that
Concurrence Opinion
concurring specially:
I concur in all of the majority opinion including the entire section addressing the 8 1985(3) issue. I write separately only to emphasize my view that, on the
In Griffin, the Supremе Court recited its interpretation of the broad language in
Quite to the contrary of the inferences drawn by the dissents, in my view, Griffin, Scott, and Bray, provide strong guidance that the Supreme Court views 8 1985(3) as encompassing gender-based conspiracies. Each of these cases presented the Court with the opportunity to limit the reach of
Griffin involved a racial conspiracy. As a race case, Griffin presented the perfect opportunity for the Court to suggest that
Likewise, in Scott, the Supreme Court declined again to interpret
Moreover, Bray presents the clearest illustration of the Supreme Court’s implicit recognition that
In the instant case, the dissents do not sufficiently heed the Supreme Court’s guidance on this issue. One dissent admonishes that “[t]he job of a United States Circuit Judge is not just to bet on which way the Supreme Court will come down later.” Similarly, the other dissent describes this issue simply as “open.”
In my view, interpreting Griffin, Scott, and Bray as providing strong guidance on this issue does not involve betting “on which way the Supreme Court will come down later,” nor is this issue simply “open.” Instead, the majority’s conclusion that gender is a class protected under
Griffin, Scott, and Bray have guided seven circuits to conclude that
Finally, I am sensitive to the sound policy arguments raised in Judge Tjoflat’s dissent. Nevertheless, the Supreme Court has offered clear' guidance on this issue, and I do not believe that the Supreme Court’s pronouncements can be avoided in any principled way.
For these reasons as well as those articulated in the majority’s opinion, I concur.
. Importantly, in none of the five separate opinions in Bray did any of the Justices opine that gender-based conspiracies were beyond the reach of
Concurrence in Part
concurring in part and dissenting in part:
I concur in Part I of the majority opinion, which reinstates that portion of the panel opinion remanding the case to the district court for reconsideration of the
I. The New Public Single Employer Test
In Part III, the majority formulates a new test for determining whether two ostensibly independent state or local government entities should be considered a “single employer” for Title VII purposes. It then finds that the district court properly granted summary judgment in favor of the appellees on Lyes’s Title VII claim because Lyes did not produce evidence sufficient for a reasonable factfinder to conclude that the City of Riviera Beach Community Redevelopment Agency (the “CRA”) and the City should be aggregated under this new public single employer test.
Before articulating the new standard for deciding whether governmental entities should be consolidated under Title VII, the majority considers but rejects the four-factor test that the National Labor Relations Board (“NLRB”) applies to decide whether to aggregate ostensibly separate private employers.
As the majority recognizes, the Supreme Court specifically has held that Title VII principles and standards apply with equal force to private and public employers. See Majority Op. at 1342. Federal courts have been using the NLRB test in Title VII cases involving private entities for more than 20 years,
A number of courts already have demonstrated that the NLRB test can be applied to government employers with little difficulty. See Riley v. County of Pike,
The majority also contends that the third factor of the NLRB single employer test— common management — is an inappropriate consideration in the government entity aggregation context. I disagree. The majority explains its rejection of the third factor by stating that “[wjhile [the common management factor] may be an appropriate yardstick in some instances, in others two public entities may share managers or other employees while remaining politically separate and distinct.” Majority Op. at 1344. This reasoning is circular: the fact that the sharing of personnel may not justify, in some situations, aggregation under Title VII does not mean that courts should simply ignore the common management factor in every case. Again, under the NLRB test, no one factor controls the outcome of the “single employer” analysis in a given case.
Upon rejecting the NLRB test as an inappropriate standard for deciding when government entities should be aggregated for Title VII purposes, the majority formulates a new test for making this determination. In large
In deciding what factors courts should assess under this new public single employer test, the majority looks to “the factors courts have considered in Title VII cases involving-private employers” — primarily the NLRB factors. Majority Op. at 1345. The majority focuses upon “centralized control of labor relations” (NLRB factor 2) as the dominant consideration of the public single employer test;
II. Applying the New Test
Applying the majority’s public single employer analysis, and accepting the presumption that test creates that the CRA and the City should not be aggregated for Title VII purposes,
Finally, the majority acknowledges that the public single employer test requires us to consider the totality of the circumstances. Although the NLRB common management factor is not an element of our analysis under this test, I see no reason for the court to ignore the reality of the situation presented in this case by refusing to acknowledge the identical composition of the respective poli-cymaking bodies of these entities — the City Council and the CRA Board — and, for eighteen months, the role of Tony Smith as both City Manager and CRA Executive Director. The Florida statute’s designation of the CRA as a legal entity separate and independent from the City may have presumptive weight under our new public single employer test, but the fact that the state statute permits the City Council and the CRA Board to have the same members does not exempt that arrangement from review. At the very least, a factfinder should scrutinize this system to evaluate the degree to which these officials were able to keep their two roles separate.
Unquestionably, some information in the record points to the conclusion that the City and the CRA were sufficiently distinct that we should not aggregate them for purposes of Title VII. Because the majority opinion catalogs this evidence, see Majority Op. at 1349-50, I see no need to discuss it again here. Considering all of the evidence — and all reasonable inferences that can be drawn from it — in the light most favorable to Lyes, as we must for summary judgment purposes, however, a reasonable factfinder could determine that Lyes clearly overcame the presumption in favor of appellees on the single employer issue, thus making summary judgment inappropriate. As to the majority’s conclusion to the contrary, I therefore respectfully dissent.
. These four factors are (1) interrelation of operations; (2) centralized control of labor relations; (3) common management; and (4) common ownership or financial control. See, e.g., Radio & Television Broad. Technicians Local Union 1264 v. Broadcast Serv. of Mobile, Inc.,
. The Second, Fifth, Sixth, Eighth, Ninth, and Eleventh Circuits all employ the NLRB test to determine whether private entities should be aggregated for Title VII purposes. See Majority Op. at 1342. The Tenth Circuit "ha[s] yet to adopt the [NLRB] single employer test, having found it unnecessary in several cases to resolve the issue definitively,” but it has not rejected the test. Lockard v. Pizza Hut, Inc.,
. The Eighth Circuit was the first court to use this test to decide whether two employers should be aggregated under Title VII. Baker v. Stuart Broad. Co.,
. This minor obstacle, however, has not hindered district courts that have employed this test where aggregation of government entities was at issue. For example, in Vandenneer, the court applied ' this element of the test by considering sub-factors such as ability to raise revenue, division of funds, independence of property ownership, separation of accounting records; and payment of bills and debts.
. The majority summarizes the first step in the new standard it promulgates as follows: "we begin with the presumption that governmental subdivisions denominated as separate and distinct under state law should not be aggregated for purposes of Title VII.” Majority Op. at 1345 (emphasis added). This formulation echoes the concerns the majority repeatedly expresses regarding the implications of federalism and comity where the state legislature has delineated government entities as separate from one another. As I read the majority opinion, therefore, this presumption only applies in a situation, such as the one before us in this case, in which the state legislature created the entities in question as "independent legal bodies.” Majority Op. at 1346.
. Courts frequently have observed that under the NLRB test as applied in the Title VII context, this factor should receive the most weight. See Barbara Lindemann & Paul Grossman, Employment Discrimination Law 1310 (Paul W. Cane, et al., eds., 3d ed.1996).
. See supra note 5 and accompanying text.
. The parties introduced two different versions of the CRA bylaws. Lyes's version contained this language, but the appellees' version, marked “Revised 11/17/93,” did not.
. The majority finds this last piece of evidence to be of little or no significance given Smith’s dual role at the time. In downplaying the importance of this incident, the majority ignores the fact that Smith listed the CRA as a "department” of the City on the form, a detail with broader implications in terms of the level of CRA/City integration than a simple error in choosing the wrong sheet of paper to complete an evaluation. The majority also improperly weighs this evidence: it is up to the factfinder — not this court — to decide the
. See supra note 9 and accompanying text.
. Again, the majority inappropriately weighs this evidence when it concludes that “there was no indication that this review had any binding effect. Instead, it appears to have been an effort to seek the opinion of a third party as to whether [the Executive Director] had acted fairly in disciplining Lyes. In this sense, [it] was not unlike seeking advice from an expert in employment relations.” Majority Op. at 1350 (emphasis added). This reasoning is highly speculative. No evidence regarding the impact of this review appears in the record, and therefore its effect on the aggregation question is an issue for the fact-finder. Nor does the record indicate the reason . the Executive Director asked for the review; thus, the purpose for which he sought the personnel director’s opinion also was a matter for the factfinder to decide. There simply is no basis in the record from which unequivocally to conclude that when the city personnel director reviewed Lyes’s discipline, he provided nothing more than non-binding, independent expert advice to the Executive Director.
Concurrence in Part
concurring in part and dissenting in part:
I concur in all of Judge Carnes’ opinion for the court, except Part III.E. In applying the new test for determining whether two state or local governmental entities will be treated as a “single employer” under Title VII, I agree with Judge Kravitch (and for the reasons she articulates) that there remain genuine issues of material fact, thus making summary judgment inappropriate.