Walker v. Prudential Property & Casualty Insurance

respect award. arguments, AHA’s With

we have ruled that the district court cor- WALKER, Patricia Golub, Marlene J. rectly AHA, restricted the evidence as Plaintiffs-Appellants, subrogee S&S, could prove introduce to the damages S&S, by incurred and we have ruled that the court correctly direct- PRUDENTIAL PROPERTY AND CA- ed a verdict to the damages amount of SUALTY INSURANCE COMPA- proven.

AHA had We also have deter- NY, Defendant-Appellee. mined that the court properly held that transport of the No. combustion turbine 99-4172. inherently dangerous as a matter of Flori- United Appeals, States Court of law, da and that AHA was not entitled to Eleventh Circuit. prejudgment decided, interest. We have however, to certify one of the issues raised March by AHA the Florida Supreme Court for review. The issue concerns the interrela-

tionship between vicarious liability and

comparative fault under Florida Statute

§ 768.81. Additionally, we have heard the appeals KUA, FMPA, filed and B&V concerning the district court’s ruling that

GE did not have to defend and indemnify them, we have affirmed that ruling.

Finally, we appeals considered the

KUA and FMPA challenging the district

court’s holding had to defend and indemnify CSX and Amtrak. Because of important issues of state law sovereign

immunity raised FMPA, KUA and we

have certified questions three to the Flori- Supreme

da Court for resolution. To as- sist in the consideration of all four ques- tions that have herein, been certified we

direct the Clerk of the Court to transmit certificate, aswell the entire record and the briefs of parties, to the Florida

Supreme Court. Until such time as the Supreme Florida responds Court to our certified questions, all proceedings further these appeals consolidated

STAYED.

AFFIRMED IN QUES- PART AND TIONS CERTIFIED. Doro- Easley, Office of F. Law

Dorothy Gables, FL, Plain- Easley, Coral thy tiffs-Appellants. Phil- Burruezo, & Fisher Juan

Carlos FL, for Defendant- LLP, lips, Appellee. GODBOLD, COX

Before MESKILL,* Judges. Circuit COX, Judge: Circuit J. and Marlene Patricia Walker of sum- grant court’s district appeal the of Prudential in favor judgment mary Company Casualty Insurance Property & discrimination employment 2000e, seq. § et YII, U.S.C. Title under discovery certain They seek review have Walker Because orders. Prudential no evidence produced them, we affirm against criminated judg- summary grant court’s district Furthermore, since ment. nexus between shown evi- discrimination complained of discovery, we affirm sought dence motions. those court’s denial district

I. BACKGROUND com- insurance national is a divisions, some numerous with

pany in Florida. offices which Flori- in the South employees in Fort Prudential, located division da * Meskill, nation. U.S. Circuit J. Thomas Honorable Circuit, desig- sitting by Second Judge for the Lauderdale. September On the within the company. Hyland up followed

manager of the Fort office, on his conversation with speaking Tom Jackson, announced to the South with Conner, Thomas the manager of the Florida employees that Prudential office, would Orlando couple of weeks after the close its Fort Lauderdale office on Decem- announcement. Hyland asked if Conner 2, ber 1994. Also attending this an- there jobs were any Orlando, nouncement Joseph Putz, Pruden- either in the report first unit or the claims tial’s Regional Director, and office, Adell relocate with no com- Prudential’s Human pensation Resources Consul- from Prudential. Conner told tant. Hyland that positions there were no avail- able at that time.

After the closing, Prudential planned to transfer the existing files and claims in As approached, December Conner was Fort Lauderdale to Orlando, the office in concerned filling about Repre- Claims so Prudential offered to transfer all li- sentative because some Fort Representatives censed Claims in Fort Lauderdale Claims Representatives had Lauderdale to Orlando as well. The Or- not agreed to transfer to To fill Orlando. lando office had an existing operations an available representative claims position, staff to handle the clerical and administra- Conner Meuse, asked Willeva a licensed duties, tive though, so none of the Fort Representative, Claims to return to the Lauderdale staff was offered an department. Meuse had previously position Orlando at that time. opera- The served as a Representative Claims tions staff in Fort Lauderdale included six office, Orlando she but had been moved to people, five women and one man. Walker Dispatcher previous in a round of downsiz- and Golub were two of the women on the ing. Meuse still serving as Dispatcher operations staff. in Orlando when Conner made the request, agreed had worked for Prudential since return to the claims year department. senior in high school. In she left Prudential to raise a family, but Meuse, when she was the Orlando Dis- she returned in 1977. Walker had exten- patcher, occasionally spoke with Hyland, sive experience in the administrative as- the Fort Lauderdale Dispatcher, Senior pects of the South operation, Florida job-related about issues. In or October she was consistently rated as excellent on November of Hyland told Meuse that her evaluations. he looking job for a new due to the began working at Fort Prudential on a Lauderdale closing. She him told permanent in early basis 1990. After call a manager in Orlando to let that office leave, brief maternity she became a Dis- know he was job interested in a there. patcher and eventually served as Senior Meuse denies that she had other conversa- Dispatcher. At the time of the announce- tions with about this topic, but ment, she was a Salvage Clerk and backup Golub claims that “Todd told me that Wil- Dispatcher. leva go said if I claims, will you take this dispatch position, and he yes.” said Todd Hyland, the sole male on the Fort (R.l-34 88.) at In words, other according operations staff, was Senior Golub, was only Meuse willing to move Dispatcher and had served dispatcher as a from Dispatcher position if Hyland for many years. Immediately after the replace would her. announcement, he told Jones that he was not only willing to transfer to but Whether motivated concern Hy- for also to any Jacksonville or other place not, land or Meuse’s transfer opened the sex- age filed April No- On in Orlando. Prudential against charges discrimination a PROFS sent 9, Conner vember filed sex- EEOC, and Golub with office informing her note1 Pruden- They charge. sued discrimination asked Dispatcher. needed May tial for contact could whether the skills all “has since HISTORY II.PROCEDURAL (R.4-182-Ex. C job.” for needed summary granted court The district in Orlando 3.) opening The district Prudential. judgment em- to other posted never that Walker determined court ployees. case of dis- facie established depart- Resources Human Prudential’s fa- prima to the response In crimination. the within job openings posted often ment it hired that case, Prudential asserted cie dis- had Resources but Human company, qualified the most he was because were postings when such over cretion the district and position, for the candidate Human was the who Adell made. no evidence there was that concluded court time, testified at the manager Resources Walker pretextual. was assertion this that in late vacancy arose Dispatcher the summary of grant appeal this Golub and a to make she decided and that the judgment. timing reasons. for placement direct the district summary judgment, to Prior Florida South the hearing After to motion Golub’s and Walker denied court Golub and close, both Walker office would Miklesh. Karen testimony of compel the job with Pruden- accept a willing to were order protective a granted also court However, nation. anywhere tial Go- and Walker preventing to expressed ever Golub nor Walker neither Tippy testimony by certain to access lub’s at Prudential.2 anyone to willingness error assert Golub Walker Rogers. ex- own pay their they offer Nor discovery orders. these of both another or to Orlando relocate penses APPEAL ON office. III.ISSUES employee only that sum- was contend Though Hyland Walker Conner, Jones call to their discrimination a made mary judgment who evidence review- thing” right improper “do the decided Hy- staff. assertion Prudential’s the entire of the files discredits 46-47.) for the process, 42-43, This more (R.3-130 land ac- seek estimate, a took week according to Jones’s con- protected testimony that is review, Jones cess After to two weeks. agreements. fidentiality quali- most decided she called job, and person fied REVIEW OF IV.STANDARD Hyland testi- job. offer him grant reviews This court approxi- job that he was fied novo, applying de summary judgment Laud- Fort before weeks mately three as the district standards same familiar work began He closed. office erdale Inc., Lines, Air v. Delta Witter court. See 5. on December in Orlando expressed first Indeed, mail electronic internal was the 1. PROFS they filed when to relocate their desire Prudential, note a PROFS program at summary judgment. opposing affidavits an e-mail. similar to 1274 Cir.1998). (11th Comm’rs, County 138 F.3d 1369 See We Bass Board 256 (11th 1095, 1105 Cir.2001). discovery orders for

review abuse Newell, Ogden, Porter v. cretion. See & make alternative Welch, Cir.2001). 241 F.3d 1338 arguments regarding actual decision- First, they maker. ask us to view Conner DISCUSSION V. Next, the actual decision-maker. that, if argue A. even DISCRIMINATION the actual CLAIMS decision-maker, Prudential’s assertion that the absence direct evidence of a qualifications-based made decision discrimination, employment plaintiff may pretextual. viewing We evidence presumption discriminatory create in light most favorable Walker and by establishing tent facie case of and, Golub, therefore, will analyze we Douglas discrimination. See McDonnell employment decision from the perspective Green, 792, 802, Corp. v. U.S. S.Ct. Tom both Conner and Adell Jones as 1817, 1824, (1973); 36 L.Ed.2d 668 Chap decision-makers. v. AI Transp., man (11th Cir.2000) (en banc). “There are a 1. TOM CONNER ways prima number of of a establishing Tom Conner was the Orlando Field pursuant case Doug to McDonnell facie Manager Claim Office when the Fort las.” Hawkins v. Corp., Ceco 883 F.2d Lauderdale office closed. As manager, he 977, (11th Cir.1989). plaintiff 982 Once responsible operation for the of the case, prima establishes a facie the burden management Orlando office and the of em- shifts to the defendant to legit articulate a ployees. He shared the ultimate authority imate, nondiscriminatory reason his ad hiring on decisions with the Human Re- Chapman, verse action. See 229 F.3d at Department. sources articulated, 1024. When such a reason is presumption is elimi discrimination the Orlando Representa- When Claims nated, plaintiff and the must submit evi tive expected, were filled as showing dence that the articulated Meuse, reason Conner transferred a licensed pretextual. pretext is See If id. is estab Representative, Claims an available lished, summary judgment in favor of the Representative position. Claims This defendant generally inappropriate. See opened transfer Dispatcher Plumbing Prods., Reeves v. Sanderson position. Since there were no other Inc., 148, 133, 2097, 530 U.S. 120 S.Ct. Dispatchers trained Conner 2109, (2000); 147 Chapman, L.Ed.2d 105 sent a PROFS note to Adell inform- 11; 229 F.3d at 1025 n. Combs v. Planta Dispatcher. her that he needed a Con- Patterns, (11th 1519, tion 106 F.3d 1538 ner testified that the Human Resources Cir.1997). Department hiring handled the from that point. However, it is from clear Conner’s “Discrimination is about actual knowl- PROFS note he inquired specifically intent, edge, and real not constructive about for the position. knowledge and assumed intent.” Silvera Bd., Orange County 1253, v. Sch. presents This case ordinary an failure- (11th Cir.2001). 1262 evaluating When a prima to-hire issue.3 The standards for a charge employment discrimination, facie thoroughly case failure-to-hire are then, we must focus on the actual knowl- established. The plaintiff burden is edge and actions of the decision-maker. show that she is a of protect- member a 3. Walker Golub contend that established a facie case of failure-to-

1275 (11th Cir.1984). 1126, If a F.2d 1133 class, for and was 738 applied that she ed plaintiffs is unaware decision-maker position, that she for an available existence, simply then he is unable dis- filled that the defendant rejected, and her, any presump- against criminate person a outside of position with is unfounded. See tion discrimination Mortham, v. See Walker protected class. (7th Pressley Haeger, 977 F.2d 297 v. Cir.1998) (11th (quot- 1192 F.3d 158 Cir.1992) (“An no empty head means dis- Union, Credit v. McLean ing Patterson crimination.”), quoted Orange Silvera 164, 186, 2363, 2378, S.Ct. 491 U.S. Bd., 244 County Sch. (1989)). L.Ed.2d 132 Cir.2001). decision, he made the When not estab Golub have only and knew Walker name prima facie case discrimination lished a not know all. Nor It is the decision-maker.4 if Conner was performance employ- familiar with their Golub were mem clear that Walker and Therefore, presume that we cannot ees. that the protected class and of the bers against Conner discriminated person filled Dispatcher position was specifically. However, it class. protected of the outside However, a broader of discrimina- form never is also clear may arise decision-maker tion where and, for the applied posi- information about available seminates thus, it. explicitly denied never through informal channels. We have tions presump- prima facie case creates The employer uses such that “when said re- application tion of discrimination. duty has informal methods it to consider important establishing quirement reasonably be interest- might all those who Carmichael, the de- it shows that presumption because ed” the the plaintiff employees knew about cision-maker F.2d at 1133. When other 738 position’s availability, See not of the plaintiffs interest are aware the Works, illegitimate” “legally it is insufficient Birmingham v. Saw Carmichael case, Sears, precluded we are not & the issues in They cite Curto v. Roebuck relocate. Co., (BNA) Empl. by applying 547 the law to the rec- Fair Prac. Cas. counsel from 38 (N.D.Ill. 1984), prima Superior for the elements of Olson v. Pontiac- ord before us. See if GMC,Inc., 265, (11th Cir.1985); Even Curto facie case of failure-to-relocate. 267 776 F.2d standards, easily Servs., it is Inc., the correct articulates Kemper v. Fin. see Kamen Curto, distinguishable case. from this 1718, 90, 99, 1711, 114 111 S.Ct. 500 U.S. policy finding new company maintained (1991) ("When an or claim issue L.Ed.2d 152 employees. See positions for eliminated its court, is the court properly before case, relo Prudential had no such id. In this legal particular theories ad- limited to the operations policy and informed cation by parties, but rather retains vanced not, fact, in be relocated. staff that would apply power identify independent to law.”). governing proper construction not raised the district 4. This issue was permit contrary would liti- conclusion "The appeal to because Pru or on this court court legal present- agreeing gants, by on the issue consistently maintained dential has ed, would be opinion an to extract ... may While we sole decision-maker. anything but advi- to characterize as difficult Devices, reason, any see Solitron affirm Oregon v. sory.” States Nat’l Bank United 274, Inc., 278 Honeywell, 842 F.2d Inc. v. Inc., Am., Agents 508 U.S. Independent Ins. 1988), usually we reluctant Cir. 2178, 439, 2173, 124 L.Ed.2d 113 S.Ct. parties argument address case, (1993). Walker and Golub See, 402 In this raised, e.g., especially in cases. Den civil as the actual urged us to view Conner Albany, ney City 1182 decision-maker, accept reluctance, however, unfair to and it is not (11th Cir.2001). This logical implications. theory mandatory. and its discretionary, When address- employer for the to assume that they are prima of a facie case “as long he estab- interested it. Harris v. Birming- lishes that the company had some reason Educ., ham Bd. duty or him consider post.” for the (11th Cir.1983). Carmichael, 738 F.2d at 1133. In this Although case, in this Prudential case was had no duty consider filled rather means, informal Fort this case Lauderdale employees for the Orlan- is unlike Carmichael and in every Harris position. Therefore, do that, we hold if other way. While those cases involved Conner was indeed the decision-maker, promotions within city, the same this case Walker and Golub have not made out a involves similar in cities that are prima facie case and, of discrimination over two hundred apart. miles thus, have not shifted the burden to Pru- already been unable to persuade some dential under McDonnell Douglas. of its Fort representa- Lauderdale claims tives to move to forcing Conner 2. ADELL JONES to reallocate some of his person- Regarding Adell Prudential has nel. Since the Orlando Dispatcher posi- conceded the existence of prima facie required tion a substantial move that many Indeed, case. because Prudential insists employees had been make, reluctant that Jones reviewed the applications of all Conner had no reason to believe that other staff Fort Lauderdale,

Fort Lauderdale employees would be in- Jones and Prudential must have been it, terested in and there is no evidence to potential aware of the employees who suggest otherwise. could fill position. To re- The vicissitudes of then, relocating, case, facie Prudential as- made Conner’s decision an easy one. serts most qualified Todd Hyland had already told Conner that candidate, which is a legitimate, non-dis- he was willing to move Orlando and had criminatory reason for hiring Hyland. pay his expenses. own Since Once such a reason is articulated, Walker Hyland was the Senior in Fort and Golub must overcome it showing Lauderdale, he had experience and train- that the articulated reason was merely a ing as a Dispatcher and could serve as pretext for discrimination. Chapman, See Dispatcher in Orlando with minimal transi- 229 F.3d at 1024-25. problems. tional Furthermore, time was essence, of the since the Fort Lauderdale pretext Our analysis focuses on a nar- office was closing in less than a month. row question: Would proffered the evi- these circumstances, Conner duty had no dence allow a reasonable factfinder to con- to consider Walker and Golub for the clude that the articulated reason for the position. decision was not the real reason? Under Carmichael, an employee may be See Chapman, 1024; excused from the application requirement Combs, F.3d at 1528. Walker5 and 5. Walker also claims that Prudential should PROFS messaging system, contested cover have hired her for the PACES Coordinator age, subrogation, phone the system and in position in Orlando. PACES is an automated Fort Lauderdale. entry system claim that allows Prudential’s When the closed, Claims Fort Representatives Lauderdale input office the claims direct ly into a PACES central position Coordinator database. Walker in served as Orlando was PACES open Coordinator for the previous while its occupant, Fort Lauderdale Cerese Van position, however, office. This Hooven, was not a full- maternity was on posi- leave. This position, time and Walker also handled the tion open months, remained for six and Walk- in trained was who for someone looked She articulat- Prudential’s that contend Golub6 imme- productive be and could position each because pretextual reason ed and file Golub’s reviewed and She Hyland diately. than qualified more was them file. She file, Hyland’s hir- as its well from as deviated Walker’s Though these Jones each with interviews. no deal granted We policies. took, long in how turn. remember arguments two took week that it guessed she QUALIFICATIONS a. weeks. were they that argue and Golub file, Jones reviewing Golub’s Upon for Hyland than qualified more each worked had that Golub learned have would To show in Orlando. position Dispatcher of 1990. December since Dispatcher aas must however, Walker pretext, closed, office Lauderdale the Fort When qualifications; superior than more show experi- years four have had would so that show rather, they must also would Jones Dispatcher. aas ence vir disparity that qualified more much for trained Hyland that known in slaps one page jumps tually off that Golub position dispatching her Inc., Fla., GTE Lee v. See face. Hyland Dispatcher backup aas worked Cir.2000). 1249, 1253-54 On office. Fort Lauderdale in the Dis- that Jones informed hand, knew that Jones other Novem- on was available position patcher Fort Lauderdale in worked typi- might position such Though ber Senior years nine for it to fill needed Jones posted, cally be information, this on Based years. six the deci- make decided immediately and that have concluded could Jones per- reviewing first herself after sion Golub. qualified than more was staff. operations of the files sonnel however, was she that argues, of all six qualifications reviewed Or- since Hyland, than more employees. Fort Claims to be a licensed Though Golub been hired should she that er contends evaluations performance Representative, position. fill this in such she interested that indicated this claim. problems with There several such claims She clearly position. estab- First, age was not Van Hooven’s testi- on the based she were available guessed that the record. lished Fort Laud- all of the mony of Conner no founda- he had about 45 had trans- Representatives belief Claims his erdale than guess other for this tion Second, ferred. was. than older she was a full- was not Coordinator PACES two fail for Golub’s Van Hooven Both time First, established has reasons. serving while duties other performed several testi- Conner available. were such was more This title Coordinator. as PACES Rep- to a Claims moved was Meuse fied that Further- position. a than responsibility aof was avail- one position resentative position more, shown has not testify that However, not able. press- a had or that was available posi- available or that others Indeed, a mail position. to fill need means. other filled been had not tions Wonderlich, to service able clerk, Robert a to be Second, qualified Hooven’s system in Van PACES Orlando licensed was not She Representative. Claims evidence, Walker’s light of absence. she mere fact position, and for the fails. claim ADEA a license willing obtain might be Moreover, Golub qualify her. sufficient should that Prudential requirement graduate, college was not become opportunity given her office. Representative Claims Dispatcher position lando involved (R.l-32 apart....” duties 53.) at Given this set typically that are associated with a Salvage circumstances, Jones could easily Clerk, and Golub was more qualified to be concluded that Walker was not quali- more a Salvage Clerk. She bases her argument fied than for the Dispatcher posi- on the testimony Hyland, who described tion. position his “dispatcher salvage clerk.” Walker Golub, then, were not so (R.2-78 5.) However, at there is no evi- much more than that the dence that Adell Jones knew that Or- disparity jumps off the page slaps one lando position involved salvage Indeed, face. the evidence suggests duties. Her knowledge of the position that Hyland was more qualified than came entirely from Conner’s PROFS note Golub, since he experience had asking (R.4-181-Ex. “dispatcher.” for a C and training and presently 3.) at Furthermore, as testified, occupied it in the Fort Lauderdale office. the salvage function was important less disparities in qualifications, then, do than the dispatching function: “What was suggest Jones discriminated interesting from that area is you had to be against Walker and Golub. Hill v. Cf. trained as a dispatcher, as a back-up dis- Seaboard R.R., Coastline patcher but there was no back-up training (11th Cir.1989) (“[A]n inference [of dis for salvage, you so knew where the impor- crimination] is justified where the there, tance was (R.l- it inwas dispatch.” plaintiffs qualifications are inferior 55-56.) 32 at knowledge Jones’s about the those of the nonminority employee favored position and the candidates forecloses any job decision, may justified be inference of pretext based on the existence when applicants’ qualifications are of extra duties. equivalent.”). Similarly, Jones’s review of file Walker’s There is some evidence, however, that would have revealed that Walker had suggests that Jones was not as thorough in as a supervisor served in the Fort Lauder- her review she testified.7 In depo- office, dale with more responsi- sition, Jones first indicated that she did bilities than Dispatcher. Although Walker not remember long how process took. experience no aas Dispatcher, she She was then asked to give her esti- best claims that she should have been allowed mate, to which responded that “[t]he to downbid. But Jones testified that she entire probably took a week to two person wanted a who could be immediately (R.3-130 46.) weeks.” at She again reit- productive in the Dispatcher position with- erated that her response just an esti- out training. Jones estimated that such mate. Hyland, on the hand, other testified training would take about three months. that he was dispatcher position As Walker testified, herself the dispatch- “about three weeks before the closing of ing function can be vital to a claims office: the office approximately” but that “I can’t “[T]he dispatching your life line. If you (R.2-78 10.) be exact.” dispatch don’t correctly, you get don’t cars to be seen or the homes be seen Walker and interpret this testimo- your claim operation kind of falls ny to indicate was offered the Indeed, 7. Jones could not recall some of the place took in November of 1994. Further- particular qualifications Walker, Golub, of more, or Jones did per- access to the Hyland during note, deposition. her We how- sonnel files immediately prior to deposi- her ever, deposition that the place tion, took on Janu- as were moved Jersey to New in 21, 1998, ary while the question decision in 1997.

1279 clearly estab- days post violated 11, two which was job on November note from personnel policy. the PROFS received lished after Jones Conner, made If the offer was Moreover, cite Pru- Walker argue, and Golub on November Walker its affirmative ac- dential’s deviation from really and not Jones it then was pretext. Though tion as evidence of policy If Conner hiring decision. who made of Prudential’s affirmative ac- the content decision-maker, dis- as we really was clearly established policy tion is not he no that above, there is evidence cussed record, contend against Walker and Golub discriminated promotion of fe- policy encouraged of exis- aware hiring and that males and minorities hand, Hyland’s testi- the other tence. On a female for the Dis- male rather than spent only that Jones mony could indicate policy. How- patcher violated this personnel files reviewing the days two TVA, ever, in Liao v. as we said if to two weeks. Even rather than one (11th Cir.1989), give “the failure to 1366 reviewing the only days two spent Jones cannot be preference plan under such of the of the six members files allegation of discrimi- support used staff, evidence show this is insufficient Id. at employment nation in decisions.” quali- not base decision that she did Any deviation from Prudential’s fications. plan in this case does not constitute evi- DEVIATIONS FROM b. pretext. dence of HIRING POLICIES therefore, left, single with a areWe argue that Prudential Walker and Golub support shred of evidence re- hiring policies, thus from its deviated namely pretext, Golub’s assertion dis- sulting in circumstantial evidence of days, than one or took two rather Jones bending established crimination. weeks, personnel to review the files two course, suggestive may, of be rules the six members the Fort Booth, 763 crimination. See Morrison deciding that operations staff before (11th Cir.1985). In this Dispatcher was more than Senior ease, however, Walker and Golub have others to serve as departed its from shown evidence, shred Orlando office. This hiring procedures. usual more, to establish without is insufficient that the First, argue articulated reason was that Prudential’s position should have Therefore, summary judg pretextual. However, testimony of posted. been appropriate. ment favor of Prudential establishes Tippy Rogers and Adell Jones Reeves, 530 U.S. at S.Ct. C f. regarding whether the decision (“[A]n employer would be entitled at 2109 of the joba was within the discretion post law ... if the judgment a matter of Department. Human Resources only issue of fact plaintiff created a weak post not to that she decided also testified employer’s reason was to whether the opening oc- job opening because uncon- and there was abundant and untrue there process. Since curred so late no evidence that independent troverted long the regarding no how evidence occurred.”). discrimination took, it is clear wheth- posting have been procedures could posting er the B. THE DISCOVERY ORDERS and De- completed between November Putz, Regional Prudential’s Joseph evidence, then, on this cember 5. Based Conner, Director, the Orlando and Thomas not to say that Jones’s decision we cannot office manager, were both involved in the denying them access to the confidential decision to close the Fort of- Lauderdale agreements.

fice and were both involved in other gen- der discrimination suits. Those suits were VI. CONCLUSION settled, and Walker and Golub seek access The district court correctly granted to the confidential agreements settlement judgment summary to Prudential. Be- and to the testimony of the individuals who cause there is no nexus between the al- brought suits, those Tippy Rogers and leged discrimination and the evidence Karen Miklesh. The district court denied sought, discovery was properly denied. access to agreements these and to the AFFIRMED. testimony. 26(b)(1), Under Rule “[pjarties may ob- GODBOLD, Circuit Judge, dissenting:

tain discovery regarding any matter, not I privileged, respectfully that is relevant dissent. This to the court mis- claim or applies defense any Carmichael v. party....” Birmingham Fed.R.Civ.P. Saw 26(b)(1). Works, case, In Cir.1984). reaching seek its information that conclusion plaintiffs relevant claims. establish facie case of discrimi- nation the court upon relies the fact that First, Walker and Golub seek the Putz- plaintiffs never applied for the dis- Rogers agreement because that case in- patcher position. And, if the decision- volved a claim that Putz closed an all- maker is unaware of plaintiffs’ exis- female office in Atlanta. They claim that tence possible interest then he cannot such information might reveal a discrimi- discriminate against her, any therefore natory animus on behalf of Putz. But presumption of discrimination is unfound- Putz, though involved in the decision to ed. close the Fort office, was not

involved in the decision to hire Hyland for Carmichael holds that when an employ- the Orlando Dispatcher position, er does post the act for which Walker and Golub seek instead relief. uses methods, informal such as Therefore, any information word of mouth, contained in to let employees know of the settlement agreement position, would not be it “has a duty to consider all relevant to the case, claims in this those might and the who reasonably be interested” district court did not abuse its in the position. discretion Id. at 1133. And an “em- so finding. ployer cannot avoid a Title VII violation by showing that it incorrectly assumed

Second, Walker and Golub seek the Con- plaintiff was uninterested job.” in the ner-Miklesh agreement because that case Id. 1133-34. involved a gender-discrimination claim against Conner. As we seen, though, This court accepts that Prudential did even if Conner was the decision-maker, he post dispatcher’s position but filled did not know that Walker and Golub were it by “rather informal methods.” Carmi- interested available position. chael us tells employ- situation Therefore, even if Conner had a discrimi- ees are protected against an employer’s natory animus against women, Walker and “legally insufficient and illegitimate” as- Golub would not have been affected by sumption that they are disinterested in the that animus in this case. The district Id. at 1134. This- court takes court, then, did not abuse its discretion away the Carmichael by giving before weeks three “about patcher assumption an erroneous to effect —that approximately,” office the closing of the disinterested employees other The office not be exact. too. could he that be disinterested but must plaintiffs the weeks 2. Three head. December on its on closed was Carmichael stands This or about be would date that to prior court’s by the troubled Second, amI on which the date was which November in two dis- evidence of consideration Hy- that asked Jones message to to Conners’ relating evidence segments, crete for him recommended and selected be relating to land the evidence and a factfin- the evidence all independent Under skills. is his segment each though as received Jones is that dis- that conclude might possibility A third der the other. files, and of Conner a look at product took request, was crimination Conner’s employ a decision could that he cooperating Hyland notified Jones and being his upon Hyland not based that selected Rogers that that job, but qualified.” qualified” “better of “better on the basis request in-house Conners’ this response to transmitted a 9 Conner On November chosen. be that to Jones: message our have reevaluated I and [Putz] Joe We will in Orlando. here

staffing needs post- who individuals 9all contacting be for qualifications determine toed you let I will positions. needed select. we individuals which know in Orlando dispatcher a need I will will who dispatcher my current backfill of, BLANCHARD, Executrix Helen weMay claims. into moving M/L be and Will under, Last Trustee and and offer Fla. S. Todd contact Deceased, DeLoache, of Waldo Testament has Todd Orlando? this him tiff-Counter-Defendant-A Plain job. for this needed skills all the ppellee, vacancy aof a notice than more This is a It is filled. it be that request a cho- be employee particular that a request DELOACHE-POWERS, minor person’s that sen, recommendation al., resident, et Colorado for actions. skills, request Defendants, files. personnel examined then Jones resident, as Georgia Blanchard, testimo- her that acknowledges Helen This court Mi John She Interests is flawed. examination Custodian her about ny long how recall DeLoache-Powers could that she Whitehead chel testified her give DeLoache- took, when asked Russell Whitehead “probably it Tes responded she Will Last estimate under Powers just weeks,” it but two DeLoache, Defen a week took Waldo tament 7 the court footnote In its estimate. dant-Cross-Claim-Defendant-Appel could matters other points out lee, its state- with excuses recall Attorney access Cole, District Lamar ment Georgia, et deposition. Circuit, prior State immediately Southern files al., Defendant-Cross-Claimant-Coun Hy- disquieting. of time The evidence ter-Claimant, testified land

Case Details

Case Name: Walker v. Prudential Property & Casualty Insurance

Court Name: Court of Appeals for the Eleventh Circuit

Date Published: Mar 26, 2002

Citation: 286 F.3d 1270

Docket Number: 99-4172

Court Abbreviation: 11th Cir.