*1 1985(3) immunity § respect to a claim.10
III. CONCLUSION We affirm the district court’s denial of summary judgment as to Johnson’s conspiracy claim. We reverse the district summary judgment
court’s denial of on John- son’s 1981 and 1983 claims insofar as those claims seek to hold the defendants
individually money damages. liable for proceedings
remand the case for further inconsistent opinion. with this PART; AFFIRMED IN IN REVERSED
PART; REMANDED. LYES, Plaintiff-Appellant, L. Shari BEACH, FLORIDA, CITY OF RIVIERA Becton, Marge Confrey, Cinthia Bruce Guyton, Orange, Bertha Barbara Rodri- guez, Individually and in their official capacities as Members of the Riviera City Council, City Beach of Riviera Beach, Florida, Crilly, individually Neil capacity
and in his official as Executive Director of the of Riviera Beach Community Redevelopment Agency, Community Redevelop- of Riviera Beach Agency, Defendants-Appellees. ment
No. 96-4577. Appeals, United States Court of Eleventh Circuit.
Nov.
facts,
attempting
argument
statements material
or for
effectively
This
asks us to hold that
practice any deception
City.
subsequent panel opinions
implicitly
two
can
prior panel opinion.
overrule a
holding
Such
Prichard,
contrary
additionally argue
10. would run
defendants
to Bonner v.
that Burrell
Ala.,
(11th Cir.1981)(en
longer legally
light Foy,
is no
viable in
1209-10
Community
banc)(holding
precedent
panels
Edwards Wallace
set
our
(11th Cir.1995).
College,
dale, FL, City of Comm. Riviera Beach Redevelopment Agency. Torcivia, Beach, FL, West Palm
Glen J. Beach Redev. of Riviera Comm. *3 Agcy. and others. Beach, Rosenberg,
Robin L. West Palm FL, Crilly. for Neil EDMONDSON, Judge, Before Circuit *, KRAVITCH and WOOD Senior Circuit Judges.
KRAVITCH, Judge: Senior Circuit City of Rivi- Shari contends that the (“the City”), era Beach Riviera Community Redevelopment Agency Beach (“the CRA”), several both officials of (collectively, “appellees”) entities discrimi- against gender. nated her because of her Granting judgment, (1) jurisdiction it over court held that: lacked (2) claim; Title VII had not pleaded a constitutional violation actionable 1983; under section suits under statute, conspiracy rights civil 42 U.S.C. 1985(3), § premised gen- upon could- der-based discrimination. reverse remand.
I. body permits governing Florida law municipality, county appropriate or after necessity, community findings of to create a redevelopment agency. Fla. Ann. Stat. 163.356(1) (1997).1 body governing The redevelopment agency wholly and the are not First, separate. the entities control share matters; redevelop redevelopment over McHale, Daves, Whalen, Michael J. McHa- agency granted “powers ment neces Considine, Beach, FL, & Palm le West sary carry or convenient to out and effectu Plaintiff-Appellant. provisions” purposes ate Florida’s Anselmo, Act, McDuff, Johnson, Community Redevelopment subject Richard Hunt Murdoch, P.A., George, powers Burke & Ft. certain governing Lauder- enumerated of the * Wood, Jr., diction; Harlinglon redevelopment Honorable Senior U.S. Cir- efforts are “nec- Circuit, Judge by sitting health, cuit for the Seventh essary safety, in the interest designation. morals, residents”); or welfare of the id. 163.356(1) body (governing must also body find (governing 1. See id. 163.355 must deter- redevelopment specific there is a need for a blighted mine that: slum areas or areas or agency). shortage housing juris- of affordable exist in CRA, Second, 163.358, alleging hiring. discrimination in §§ 163.370. body. Id. agen redevelopment complaint A share funds. Notice sent Smith entities by the taxes levied cy a fraction of receives August to the CRA on forwarded (including the entities governmental various suspended Lyes day, Crilly The next geographic body) within the governing refusing meeting. Crilly claims attend Id. redevelopment area. boundaries knowledge he no had the EEOC Third, per may entities share § 163.387. suspended Lyes. Lyes he when run redevelopment agency is sonnel. charge, time filed second EEOC appointed board of commission by either Upon City, alleging retaliation. Id. governing body itself. ers returning suspension, from received a 163.357(1)(a). 163.356(2), In the latter §§ Crilly. reprimand written *4 case, govern of the although members “[t]he respect Lyes grievances filed internal with agency, of the ing body shall be the members reprimand. suspension to her Conse- a constitute the head of ... such members quently, Crilly requested that James Wal- distinct, indepen legal entity, separate, dron, City, Director of Personnel body county of the governing from the dent 163.357(1)(b). discipline his § conduct a review of towards municipality.” Id. or Lyes. report ap- a Waldron made written Beach, ap- receives In Riviera CRA proving Crilly’s two conduct. Within of its funds from the proximately two-thirds months, Crilly Lyes negative perfor- gave (“the body City. City’s governing The review, a after which he fired mance week Council”) CRA; of the also serves as the head Lyes charge her. filed a third with the Council each of the five members EEOC, naming alleging retalia- of the CRA Board is likewise a member Nevertheless, op- complaint. the CRA Commissioners. tion for the second She also re- apart City. It ways in from the erates some in quested appeal hearing connection with its own bank accounts and records. maintains hearing firing. The Board held a her CRA separate and offices. It also has staff Lyes represent- were at which and the CRA by presented The ed counsel and evidence. Lyes redevelopment CRA hired The unanimously upheld Lyes’s ter- in that CRA Board planner July in and she served in capacity until her termination December mination. hire, DeLa- Lyes’s At the Don time De-
ney
the CRA’s Executive Director.
was
II.
February
whereupon the
Laney left in
Lyes’s complaint alleged
foregoing
Smith,
Tony
became the inter-
City Manager,
ac
gender
constituted
discrimination
facts
im Executive Director
drew
VII,
§
tionable under Title
U.S.C.
In
salary funds for his service.
CRA
1985(3),
Appel
law.
and Florida
U.S.C.
Crilly,
Lyes
July
learned
Neil
complaint
various
responded to the
with
lees
City,
being
planner for the
was
considered
converting these
to dismiss. After
motions
permanent Executive Director of
summary judgment
into motions for
motions
why
Lyes
inquiries as to
she was
CRA.
made
present
evidence
allowing
parties
job.
that she was
not offered the
She claims
pleadings, the
court
beyond the initial
district
one of the CRA Commis-
told
Smith and
summary judgment. Specifically, it
granted
unqualified
was
because
sioners that she
jurisdiction over
that:
it
lacked
held
allegedly
her that
people
These
told
her sex.
the CRA
Lyes’s
complaint
Title
because
world,”
VII
way
is “the
discrimination
meaning
within the
it,”
“employer”
not an
“get used to
and that
she would have to
statute;
appellees were entitled
because the Executive
gender was a factor
frequently
summary judgment
Lyes’s
Director would need
deal
section
Lyes protested
treat-
developers.
claim,
opinion
male
in
light
in
this court’s
writing
in
to the CRA Board.
ment
Pate,
McKinney v.
A. ployer” Age under the Discrimination Em- ployment plain- Act was an element of the illegal Title VII makes it for an tiffs cause of action. Id. 1262-65. Garcia individual, “employer” “discharge any or appropriate pres- dictates the standard in the against any otherwise to discriminate individ case; that, appellees ent claimed as a factual terms, respect compensation, ual with to his matter, jurisdiction the district court lacked conditions, privileges employment, or be prove could not an element of cause of such individual’s ... sex....” her claim—that she 2000e-2(a)(l). worked for Title VII U.S.C. The statute defines “employer.”4 Because this is so and because “employer” person engaged as “a in an in beyond the district court considered evidence dustry affecting commerce who has fifteen or allegations complaint, it could not employees day working more for each dismiss Title VII claim unless there twenty each of more calendar weeks genuine was no issue of material fact about preceding year, current or calendar 2000e(b). worked for a Title VII “em- agent person____” of such a Id. ployer.” appeal, On our review of “employer” The existence of a Title VII is a the dis- *5 jurisdictional trict prerequisite plenary, apply court’s decision is to suit under the we Assocs., Virgo statute. v. Riviera Beach the same standards as the district court. (11th Ltd., Cir.1994). 1350, 1359 Cochran, 30 F.3d The Gordan v. 116 F.3d (11th Cir.1997). Lyes, district court concluded that an em ployee CRA, of the did not work for an Lyes claims that the district court “employer” because the CRA never has had concluding erred that she not work for did employees.2 fifteen or Consequently, more “employer” meaning within the of Title the court dismissed Title VII claim for City VII because the together CRA and the jurisdiction.3 lack of employees have more than fifteen and be juris
We review the district court’s
aggregated
cause the entities should be
dictional
judgment
counting purposes.
dismissal under
Courts have
that
held
Copenhaver,
standards.
In
aggregation
proper
Garcia
Bell &
in three circumstances:
(11th
Assocs.,
104 F.3d
plaintiff
when the
respon
that the
“show[s]
we
that
held
where a factual attack on sub
employer
integrat
dent and the actual
are so
ject
jurisdiction implicates
matter
operations
an element
in their
‘single’
ed
as to be a
action,
plaintiffs
cause of
employer;
respondent
show[s] that the
exer
court should treat
the attack as one on the
employment
cises such control over
condi
plaintiffs
merits of the
‘joint’ employer;
claim. The court
tions
be
or show[s]
analyze
then
challenge
putative
should
the
that
employer
‘agent’
under Fed.
the
anwas
12(b)(6) (if
respondent,
R.Civ.P.
it considers the com-
employer.”
the
who is the true
Supreme
recently
2. We note
party,”
requirement
Court
de-
civil action
entity’s "employer”
liberally,
cided that an
purposes
status should
“[w]here
is construed
fulfilled,
by counting employees
be
party
determined
under
Act are
unnamed in the
method,”
"payroll
charge may
subjected
jurisdic-
so-called
see Walters v. Metro-
EEOC
to the
-
Enters., Inc.,
-,
politan
Virgo,
Educ.
tion of the federal courts.”
30 F.3d at
(1997),
Here,
opin-
but this
1358-59.
in view of the shared interests of
text,
parties
City
ion does not affect the instant case. The
and the CRA detailed in
we
had,
agree
any
CRA
(especially
has
method of
conclude that notice to the CRA
be-
counting,
staffpeople
capacity
no more than five
cause it was sent to Smith in
dual
his
City Manager)
one time.
Executive Director and
fulfilled
purposes.
Title VII’s
City argues
3. The
that the district court could
"employer”
have dismissed the
part
from the suit because
4.It
is clear that the
issue is
of a
Garcia,
only
plaintiff’s
named
the CRA in her initial EEOC
Title VII
claim. See
("The
charge. Accordingly,
only
asks us to affirm
at 1264
notable difference between
(Title
ground. Although
‘employer’
on that alternative
it is true
VII's and ADEA's]definitions of
that,
rule,
general
‘employees'
"as a
the failure to name a
is the number of
each statute re-
party
complaint precludes
quires.”).
in the EEOC
a future
VII,
Grossman,
“employer”
Virgo,
Title
30 F.3d at
Lindemann
Paul
2 Barbara
&
(Paul
Employment
applied
1359. At least
courts
Law two
have
Discrimination
ed.1996).
al., eds.,
public employment
NLRB factors.to
Cane,
This cir-
eases.
et
3d
W.
liability under all See Rivera v. Puerto Rican Home
recognizes Title VII
Attendants
cuit
rvs.,
Inc.,
theories,5
theory,
Lyes’s primary
F.Supp.
Se
three
(S.D.N.Y.1996);
Pike,
dispositive
ap-
Riley County
this
we
one
find
(C.D.Ill.1991).
F.Supp.
the CRA and the
function
peal, was that
employer.6
single
aas
however,
Appellees argue,
binding
cir-
precedent precludes
cuit
use of the NLRB
to con
have
that the factors
held
government employment
factors in
cases. In
private
in determining
sider
entities
Vernon, Ala.,
Dumas v. Town Mt.
single employer
those
operate as a
are
ad
(5th Cir.1980),7
F.2d 974
the district court
ministratively promulgated for cases under
a suit against
dismissed
for lack of
a'town
(“NLRA”).
Labor Relations Act
the National
jurisdiction
req-
because the town
lacked
“(1)
The “NLRB factors” include:
interrela
appellant
of employees.
uisite number
control of
operations,
tion
centralized
that,
test,
under the NLRB
claimed
town
relations,
management,
common
labor
single employ-
should have been considered a
ownership or
con
financial
common
county
prede-
er with
state. Our
Davenport-Harris
trol.” McKenzie v.
Fu
circuit, however,
apply
cessor
“declinefd]
Home,
Cir.
neral
theory
hold
Town and the
1987). Although
apply
NLRA
does
county,
three,
‘single
state or
or all
are a
152(2), Lyes
public employers, 29 U.S.C.
”
employer,’
explain-
id. at
n.
without
suggests that
test controls when
same
ing why. The Fifth Circuit since has stated
plaintiff alleges
government
that two
en
cryptic
the Dumas court’s
statement
enterprise.
single
She
*6
inapplicable
government
to
entities because
change depending
plaintiff
whether the
exempts public employers.
the NLRA
Tre-
public
private entity.
a
a
Dothard
sues
or
v.
397,
Corp.,
vino v.
701
n.
Celanese
F.2d
404
Rawlinson,
321,
14,
433
331 n.
97
S.Ct.
(5th Cir.1983).
10
(1977)
n.
2728
Applying the NLRB factors to the case, present Second, Lyes present we conclude that importantly,9 and most ed genuine sufficient evidence to create has introduced con evidence centralized issue of fact that the are a the CRA trol labor relations sufficient to survive thus, single “employer”; Title VII judgment. Citing by dis the CRA’s jurisdictional laws, trict concluded, court’s was in dismissal appel court First, presented here, error. significant argue evi lees CRA Executive dence that the CRA and the have in solely responsible Director is for hiring and operations. terrelated Specifically, supervising agency rec staff.10 introduced ord contains: minutes of contrary appellees’ the CRA Board evidence contention. one, meeting considering Crilly’s appointment bylaws only recently For the CRA’s *7 Director, Executive at which gave one Commis the responsibili Executive Director sole “essentially sioner the ty hiring describes hire as firing; appears for and it that the (2) ‘promotion within’”; bylaws reported from City CRA Executive Director to the stating Manager the CRA prior “Executive Director until Lyes’s one month to report supra. City “pre addition, shall to dismissal. See note Manager” the and In pare Agency agendas Crilly per coordination of requested City’s the fact the (3) City Manager”;8 [the] an discipline advertisement sonnel director to review his to City Manager’s job, for the seeking appli- Lyes11 City fact wards and the the parties 8.The introduced different versions of the 9. Courts often have noted that this factor should weighed bylaws. appellees' heavily CRA more than others. In submission —which See Linde- cases). supra, (collecting & at 1310 bears notation "Revised 11/17/93” —neither Grossman, mann City Manager's of the references to the role vis-a- Appellees rely Crilly's employment also on appears. vis the Executive Director Because contract, provides which that he serves at adopted these seem to amendments have been pleasure proof only of the CRA Board. This is Lyes charge after had filed her second EEOC and marginally helpful; says simply Crilly’s it termination, only a month before her we consid- employment by are conditions controlled bylaws probative er the former evidence of the CRA, says nothing about the CRA staff in workings entity discharged Lyes. which general Lyes particular. timing suspi- We also note is somewhat cious; change occurred disposal within three months 11. The district court’s of this evidence City's potential inappropriate judgment. first notice that it was a on It stated, "[tjhat City employee approved a CRA defendant. disciplinary convincing action ... is not evidence officer B. attorney hearing when the acted as request Lyes’s for Board considered CRA court, Lyes In the sought district City point to control of both reinstatement relief under 42 alleging U.S.C. un labor relations. gender constitutional discrimination Third, employment. Although it the CRA she cannot be doubted invoked the Amendment, City management. common Fourteenth did not specif and the share style City ically on the one to people The same five serve Coun- this claim as vindicate her Board, policy-making rights Equal cil and the Protection CRA Clause. Moreover, year pleading for a oversight entities. This led district court bodies both half, City analyze Tony argument served both constitutional Smith her The Manager light process precedent Executive Director. of our In and CRA due alone. court, however, brief, however, appellate concluded that it was district labels her City the CRA com- appropriately.13 unclear that the are claim We must decide citing statutory monly again pleadings were managed, sufficient to redevelopment provision agen- give appellees court notice that declares and the of an claim, independent. protection But equal cies to be thus re necessitating not legislative change they do the mand. We were. declarations conclude that facts; managed are common- these entities Lyes’s complaint contains alle- numerous ly.12 protection gations equal with an consistent
Finally, Lyes ample has introduced evi- strikingly, Lyes cause of action. Most claims fiscally dependent that the dence CRA outright that she was that she not told City. independent lacks reve- Moreover, The CRA promoted gender. because of her instead, nue-raising tax- power; relevant alleged: III of Count “It (both city county) pay ing authorities has been and custom of policy Defen- to the Ac- portion of their revenues CRA. individually ... acting dants and in their cordingly, the receives of its CRA two-thirds capacities, official to discriminate fe- points also budget taxes. out employees”; male “Defendants ... have an interest-free loan to made implemented policy keep- and custom of CRA, we take notice Florida positions ing management females out of provide fur- permitting statutes selecting position Ex- Plaintiff for the Fla. ther funds See Stat. Ann. CRA. Director”; “Defendants’ ecutive action 163.358(3) body may (governing authorize Plaintiff, constituted discrimination sexual redevelopment issuance revenue bonds Rights, process her due violation her Civil 163.356(3)(d) activities); (governing id. law, deprivation constituted of her may body appropriate redevelopment immunities”; (4) rights, privileges and “The agency operating ex- sufficient funds sexually discriminatory acts of Defendants penses). departmental and their refusal to follow stan- procedures hiring ... were dards totality the circumstances thus indi- *8 color, customs, regulations, actions under the questions of fact remain genuine cates Florida”; (5) usages of “The the State as to whether or not the CRA subjected depriva- Plaintiff ... to the actions sufficiently overlapping operations as have so ..:, rights right wit: tion of to Plaintiffs employer. single to be Conse- considered § 1983 ... free from discrimina- to be quently, we must reverse the district court’s protected by summary contrary. employment tion in and to be judgment to the context, acknowledged the control unrelated he statute has substantial over CRA Beach, employees.” Lyes City opined: Redevelopment Riviera No. Beach but “the Miami 95-8285-CIV-RYSKAMP, (S.D.Fla. slip op. at 18 Agency agency an of Miami Beach is 1996) added). (emphasis court in erred legally juristic entity not a which is weighing beyond what neces the evidence was city....” Op. Ally. and distinct Fla. sary determining whether a fact exist 4, 1982) (internal (Feb. quotations — 82-5 Gen. omitted). ed. Indeed, Attorney 12. the Florida General has rec- Appellant's at 46. Br. talismanic; ognized that statute is not in an
1388
process
portion
Lyes’s
Corp.
Corp.,
due
law.”14 The
Resolution Trust
v. Dunmar
43
(11th Cir.) (citation
complaint
omitted),
42
devoted to U.S.C.
also F.3d
599
—
charged
conspiring
denied,
the same
with
U.S.-,
74, 133
defendants
cert.
116 S.Ct.
to
in
discriminate
her
violation of the
(1995);
Sprinkler
L.Ed.2d 33
see
Road
also
Equal Protection
In
Clause.
view these
Independent
Fitters Local
No.
Union
allegations,
complaint
we conclude that
(11th
Sprinkler Corp., 10 F.3d
factually
enough
give appel
detailed
Cir.),
denied,
cert.
U.S.
S.Ct.
strong
that equal protection
lees a
indication
(1994) (holding
L.Ed.2d
issue,
legal theory
was at
even if the
properly
district court “could
treat as aban
inarticulately expressed.
See Luckett v.
alleged
complaint
a claim
in
doned
but
Rent-A-Center,
Inc.,
F.3d
summary
ground
not even
as a
raised
—
Cir.),
denied,
--,
cert.
judgment”). Nevertheless,
pleadings
be
(“Complaints
summary judgment,
fore the court on
like all
plead
theories.”);
legal
need not
Bramlet
pleadings, “shall be so construed as to do
(8th Cir.1974)
Wilson,
(“[A]
495 F.2d
8(f).
justice.”
substantial
Fed.R.Civ.P.
complaint
merely
should not be dismissed
Appellees,
ignoring
equal
plaintiffs allegations
sup
do not
protection implications
Lyes’s complaint,
advances,
port
particular
theory
legal
he
summary judgment
ground
on
moved
duty
for the court is under a
to examine the
not
did
state an actionable due
complaint to
if
allegations pro
determine
Pate,
process
light McKinney
claim in
any possible theory.”).
vide for relief on
(11th Cir.1994),
denied,
cert.
end,
inquiry
Our
does not
howev
1110, 115
130 L.Ed.2d
er,
complaint
determination that the
(1995). Specifically, they argued
provided adequate
appellees
notice
was,
best,
Lyes’s job
prop
a state-created
protection
an equal
claim. Because
dis
erty
that,
right,
McKinney, depri
after
granted summary judgment
trict court
after
rights
vations of state-created
do not offend
parties
allowing the
further to refine their
component
process.15
the substantive
of due
arguments,
opposed
to dismissing
Lyes responded
McKinney
distinguishing
ask,
complaint,
in light
plead
we must
involving only
claim;
state law
she
ings
summary
before the district court on
that,
herself,
plaintiff
claimed
unlike
judgment,
sufficiently
ex
McKinney
suing
“was
violation of
pressed
equal protection theory
to the
is,
rights,”
civil
rights
“fundamental
James,
court. See Adams v.
only by
which are created
the constitution.”
(11th Cir.1986) (remanding
after sum
Response
Plaintiff’s
to Defendant’s Motion
mary judgment
appellants
where
identified
omitted).
(emphasis
to Dismiss at 10
Al
theory
“plead
appeal
actionable
and the
though Lyes and her counsel would have
ings
enough to encompass
[were] broad
such
been
to have
well-served
identified her fed
Indeed,
theory”).
“[t]here
no burden
rights
protection
civil
equal
eral
claim as an
upon
poten
district
every
court
distill
juncture,
claim at this
we conclude that the
tial argument
upon
could made based
above-quoted statements should have
alerted
summary judg
materials before it on
Rather,
the district court to her
upon
parties
ment.
continued reliance
the onus is
Indeed,
arguments;
upon
equal protection theory.
grounds alleged
formulate
upon
sum
district
opposed
not relied
court realized that
mary judgment
are deemed abandoned.”
judgment because
anof
asserted
*9
Complaint
present
14.
Lyes
Plaintiffs Amended Verified
ap-
15-
she could
her case.
does not
17.
peal
ruling
the district court’s
on this issue and
Greenbriar,
we therefore deem it
See
abandoned.
Alabaster,
1570,
Ltd.
1573 n. 6
Appellees
argued
15.
further
district
of
—and
(11th Cir.1989).
Lyes
To the extent that
procedural
process
contin-
agreed
court
due
—that
first,
appeal
appellees
ues to maintain on
that
violated
claim was meritless
two
reasons:
that
by making
Lyes
right
the Due
Clause
a
protected property
did not
Process
false and
have a
job,
stigmatizing
process
employee;
her
as she was an at-will
statement
in the
of dis-
second,
her,
appellees
Lyes
process
charging
gave
that
affirm
all the
we
the district court. See
by providing
hearing
she
her
was due
a
in which
Cir. R.
11th
36-1.
(1954).
court,
Consequently,
un-
right
gender discrimi-
constitutional
Lyes
derstanding
alleged
that
a constitution-
nation:
right
gender
to be free from
discrimina-
al
she
Lyes
arguing
is
that
appears
It
tion,
should have considered whether
right
has a
not to be discrimi-
fundamental
protection
equal
stated an
claim.
gender,
against on the basis of her
nated
Lyes’s
therefore
com-
conclude
rose
of
right
to the level
plaint
responsive
although
pleadings,
far
property interest when she was terminated
clarity, sufficiently
from a model
notified
discriminatory
Lyes, howev-
reasons.
appellees and the
that she
district court
er,
attempt to
the conse-
fails in her
avoid
challenging
equal pro-
an
her termination on
McKinney.
is not
quences of
The Court
theory. Accordingly,
tection
district
Lyesf’s]
that she
persuaded by
argument
analyze Lyes’s equal
remand
court on
should
right not to
recognized
has
fundamental
protection
claim to
if
determine
gender.
on
be terminated based
her
proper.
judgment is
claim
gender
based Title VII
cannot take
claim
it into Constitutional
transform
C.
Applying
by alleging discrimination.
appellees
alleged
also
Lyes’[s] reasoning to its
conclusion
logical
deprive
protec
conspired
equal
of her
her
every
plain-
provide
discrimination
would
1985(3)
rights in violation of 42 U.S.C.
tion
pro-
tiff with an additional substantive due
job
by denying her the Executive Director’s
cess claim.
eventually terminating her. The district
denied relief
neither the
court
because
Su
Beach,
Lyes City
Riviera
No. 95-8285-
preme
nor
Court17
this circuit has ever ad
(S.D.Fla.1
CIV-RYSKAMP,
op.
slip
at 24-25
gender-based conspiracies
dressed whether
996).16
rejection
The district court’s
1985(3)
under 42
are actionable
U.S.C.
Lyes’s
summary judgment of
claim under
it was disinclined to “broaden what
process
overly
rubric was
formalistic.
due
1985(3)
gen
to include
is actionable
only
allegations
Not
the factual
did
court
der based claims.”18 The district
did
protection,
equal
invoke
however,
not,
there
consider whether
process should
reference to due
continued
to believe that the statute itself en
reason
equal
not have been viewed
fatal to
compasses gender
Because
discrimination.
claim,
protection
concepts
equal
“the
history,
language,
we conclude
stemming
protection
process,
and due
both
judicial interpretations
all
of section
fairness,
from our American ideal
are
conspiracies
to discriminate
indicate
Bolling
Sharpe,
actionable,
mutually exclusive.”
are
we reverse the
based on sex
693, 694,
497, 499,
court.19
16. We court's S.Ct. district assumption dissenting) (gender-based conspiracies ent that Title VII an exclusive covered by municipal remedy 1985(3)); discrimination state and S.Ct. at id. at under section employers. We have assumed otherwise in our J., (same); (O'Connor, dissenting) Great Ala., prior cases. See Cross State Savings Assn. v. and Loan No- American Federal Cir.1995) (allowing parallel votny, S.Ct. n. VII em- section 1983 and Title claims in (White, J., 2358 n. L.Ed.2d 957 context). ployment Marshall, JJ., dissenting) joined Brennan and (same). Supreme has 17. The Court reserved 1985(3)'s application gender-based of section op. Lyes,slip at 31. conspiracies. Bray v. Alexandria Women’s Clinic, 263, 269, Health (1993). of Jus- A number gen- only element—whether 19. We note one tices, however, express have had 1985(3)'s occasion trigger animus can section der-based their the issue. See id. at view on Lyes's is involved protection cause of action —of J., (Souter, part, dissenting concurring at 772 present appeal. on remand To succeed in the requirement part) (suggesting that animus prove: Lyes must still 1985(3) implicates at consti- least "those section depriv- purpose conspiracy, for the protection equal that deal with tutional cases *10 any person directly indirectly, ing, or either or heightened calling for strict or classifications protection persons equal of the of the class of laws, employ scrutiny, when official discriminations as race, equal privileges and immunities or of origin, al- such characteristics national laws; 319, act in furtherance ienage, illegitimacy”); the gender, at 113 or id. 1390 Catholic, begin Methodist, plain with the statute’s or he or language. because was a Cong. 1985(3) he provides: was a Vermonter....” Section (1871). Cong., 42d 1st 567 Globe, Sess. any If persons two or more State or point, the of More to member the House Territory disguise conspire goor on the bill all observed was intended for premises another, highway or on the of for protect Republicans Americans: “It not to is purpose depriving, directly of either or liberties, lives, only property, in their but indirectly, any person persons or of class well, only, Democrats as not the colored laws, equal of protection or of also; yes, the whites even women and chil- equal privileges and immunities under the (statement App. dren....” Id. at 190 of ..., party injured deprived laws so or Thus, Buckley). Rep. although “it is a close may recovery have an action 1985(3) was intended injury damages occasioned such or de- any reach class-based animus other than ani- privation, any against one more of or against Negroes mus champi- and those who conspirators. cause,” Carpenters oned their United Bhd. of The statute on face its does exclude Am., Scott, & Joiners Local v. 610 463 Rather, coverage.
women its the sec 825, 836, 3352, 3360, U.S. 103 S.Ct. 77 protection phrase “equal tion’s use of the (1983), legislative 1049 is history L.Ed.2d laws,” only years enacted three after the consistent a view of the statute im- posing liability conspiracies beyond Fourteenth those Amendment was ratified with Const, based on race. language, see identical U.S. amend. 1, XIV, § suggests enacting Con Similarly, judicial gloss 1985(3)’s gress coverage intended section acquired statute has its since enactment track jurisprudence, Fourteenth Amendment leads us to conclude women are a class protected
which
views
now
women as a
class.
1985(3).
protected by
Supreme
section
The
Boren,
198,
190,
Craig v.
429 U.S.
97 S.Ct.
provision’s
Court has stated that
“lan
457,
451,
(1976).
50
397
L.Ed.2d
As the
guage requiring
deprive
equal
intent
noted, “[b]y
very
Second Circuit has
its
lan
protection,
equal
or
privileges and immuni
1985(3)
guage
ties,
racial,
necessarily
is
tied to evolv
means that there must be some
class-based,
perhaps
or
ing
equality
citizenship.”
invidiously
notions
otherwise
New
discriminatory
conspira
animus
Org.
behind
York
Nat’l
Terry,
State
Women
Breckenridge,
tors’ action.”
(2d
Cir.1989),
cert. de
Griffin
88, 102,
1790, 1798,
S.Ct.
L.Ed.2d
nied,
495 U.S.
110 S.Ct.
(1971) (emphasis
in original). Persons
(1990).
L.Ed.2d
alleging
gender-based conspiracy easily
1985(3)
legislative history
The
of section
satisfy
beyond
this condition. It is now
cavil
also does not warrant a restrictive view of
sex,
that intentional discrimination based on
protected by
provision.
classes
“an immutable characteristic
determined
Congress may
members of the 42d
not have
solely
birth,”
by the
accident
Frontiero
protection
had
women
foremost
Richardson,
411 U.S.
93 S.Ct.
enacting
their minds when
provision
(1973),
1391 1985(3) that section em- have held appeals21 gender-based HEATH, Jr., con- premised on
braces suits H. Plaintiff- James Appellant, Cross-Appellee, likewise. spiracies. We do
v.
III. CORPORATION; MOTOR Amer SUZUKI Corporation, Motor Defen ican Suzuki Accordingly, we REVERSE the order dants-Appellees, Cross-Appellants. court, for those issues dis- save 15, No. supra, AFFIRM. 96-9092. cussed in note which we REMANDED to the district This ease is Appeals, States United Court with this proceedings court for consistent Eleventh Circuit. opinion.
5,
Nov. 1997.
EDMONDSON,
concurring
Judge,
Circuit
part:
in
part
dissenting
in
issue, except I
I
on each
concur
dissent
and on
the result on the section 1983 claim
claim discussed in footnote
Due Process
175,
(1979); Conroy Conroy,
conspired
v.
F.2d
deprive him or
a constitution-
957
575
177
her of
Enters.,
Cir.1978).
(8th
right,
al
or she must also establish that
See
he
also Haverstick
Inc.
989,
Credit, Inc.,
pos-
right
is one
the individual
F.3d
Fed.
32
994
v. Financial
large,
simply
1994) (dicta)
against
(6th
gender
sesses
the world
not
(suggesting
Cir.
cov
against
government.
ered).
See
Bhd. Car-
United
831-33,
penters,