Wanda L. Adams v. Florida Power Corporation
255 F.3d 1322
11th Cir.
2001
Check Treatment
Docket

*1 AFFIRM the district Accordingly, we purchase of a holding that Hill’s

court’s funds, non-exempt made

home with creditors, does to hinder

the intent excep- homestead the Florida

overcome

tion. al., ADAMS, Floyd, L. Leo et L.

Wanda

Plaintiffs, Counter-defendants,

Appellants, CORP.,

FLORIDA POWER Florida Defendants,

Progress Corporation,

Counter-claimants, Appellees.

No. 99-15306. Appeals,

United States Court

Eleventh Circuit.

July Markman, Markman Kynes,

Stuart C. & P.A., Charlton, Felman, Clark, Scott Borders, P.A., Charlton, Martino & Tam- FL, Scott, Gleason, Edward L. & pa, Scott *2 Ocala, P.A., FL, Finch, Michael I. Steven BACKGROUND FL, Petersburg, Appellants. Saint for (“FPC”) Corporation Florida Power op- publicly-regulated erated as a electric utili- Gaddy, Robert E. Florida Power Corp., ty monopoly until when Congress FL, Petersburg, Nancy St. J. Lewis Sapp, opened industry competition to Elarbee, Reynolds, Trap- F. & Thompson through Energy Policy Act of nell, Atlanta, GA, Marshall, Alison B. Glen Progress Stat. 2776 Florida Jones, Nager, Day, Pogue, D. & Reavis Corporation parent is its corporation. DC, Washington, Appellees. for plaintiffs Wanda Adams and several other (the class”) “Adams were terminated FPC between 1992 and during a reorganizations series of the company necessary states were to maintain its com- BIRCH, BARKETT Before petitiveness newly deregulated mar- *, Judges. MAGILL Circuit ket. Members of the Adams class sued FPC and parent corporation claiming, its BIRCH, Judge: Circuit alia, inter against FPC discriminated presents This case im- issue of first them because of their violation of pression regarding our circuit whether a the ADEA. disparate impact theory liability is avail- the district court conditionally plaintiffs able to suing for discrimina- certified a class of former FPC

tion under Discrimination in Em- claiming age August discrimination. (“ADEA”), ployment Act of 1967 29 U.S.C. 1999,the district court decertified the class § seq. 621 et The district court ruled as a and ruled as a dispa- matter of law that a matter of law that disparate impact claims impact theory liability is not avail- cannot be Be- plaintiffs able to bringing suit question presents cause the a controlling ADEA.2 Because there is some conflict case, issue of law judge among yet the circuits and we had not opined there were substantial grounds ruled on availability im- decision, disagreement for over his he cer- pact claims under the the district tified the question pursuant us to 28 question pursuant court certified the to us 1292(b).1 1292(b).3 U.S.C. We exercise our dis- to The court was cretion to take the case and AFFIRM. careful to findings note he made no * Magill, Judge J. plaintiffs’ Honorable Frank U.S. Circuit 2. The court also found that the dis- Circuit, Eighth sitting by designation. parate sufficiently for the treatment claims were not support proceeding similar to Ac- class. sister, concurring opinion, 1.Our in her con- cordingly, the court held that the Adams class by deciding cludes that we overreach pursue members would each their question of whether separately. individual remedies cognizable under ADEA as a matter of plaintiffs law. She would find that the failed 3. The district court’s Order of Certification adequately allege disparate following: states the claim. position posture This is inconsistent with the right wrong ruling I am [W]hether expressly of the case. The district court made disparate impact theory findings sufficiency no of fact on the is unavailable to these Plaintiffs is a critical allegations plaintiffs' complaint. in the ought In- finality issue that to be resolved with deed, reasonably proceed because the district court certified before the Court can us, question "pronouncement management litigation of law to with the of this to- required. controlling question in the abstract” is ward ... trial 623(a)(1) (ADEA) with 42 U.S.C. Adams of whether the

fact or assessment (Title VII). 2000e-2(a)(l) evidence produce class sufficient could that Title VII supports Court has held Ac- disparate impact. state a claim cause of action for discrimina- us is *3 sole before cordingly, the disparate impact theory.4 tion based on law, whether, of a matter Co., Duke Power 401 U.S. Griggs See v. brought under the may 424, 849, 853, 431, 28 L.Ed.2d 158 91 S.Ct. ADEA.

(1971). II. DISCUSSION have relied on the hold Several circuits that, ing Griggs to find because the in the district court’s We review parallels language of the ADEA Title terpretation a statute de novo. United of also al disparate impact claims should be 1335, Prosperi, 201 F.3d 1342 States v. v. lowed under the See Geller Cir.2000). (11th any question As with (2d 1027, Markham, 635 F.2d Cir. 1032 statutory interpretation, begin by we ex 1980); Moines, City v. Des 99 Smith text to determine whether its amining the (8th Cir.1996); 1466, F.3d 1469-70 “In meaning construing is clear. statute Borden’s, Inc., 1390, 724 E.E.O.C. v. F.2d and often end as begin, we must should Cir.1984). (9th In a 1394-95 case involv well, it language with the the statute liquidated under ing damages Co., self.” v. Dillard 120 Paper Merritt Supreme explicitly open left (11th Cir.1997). 1181, F.3d 1185 “Where disparate impact question of “whether Congress express chose its language theory available is unambiguous, intent that is as is clear Paper Biggins, ADEA.” Co. v. 507 Hazen far as its gowe ascertain intent because 610, 1701, 1706, 604, U.S. 113 S.Ct. 123 Congress we said what presume must (1993). Second, Eighth, 338 meant what it meant and said.” United read Ninth Circuits have Hazen liter Steele, (11th 1316, States v. 147 F.3d 1318 ally and continue to allow Cir.1998) (en denied, banc), cert. 528 U.S. Lines, Criley claims. v. Delta Air See 933, 335, 145 120 S.Ct. L.Ed.2d 261 (2d Inc., Cir.1997) 102, (per 105 119 F.3d curiam); Aerospace Cmty. Lewis v. Credit language closely (8th Union, 745, Cir.1997); 114 F.3d 750 parallels that of Title VII. Lorillard Airlines, Inc., Frank F.3d v. United 216 575, 584, 866, Pons, v. U.S. 434 98 S.Ct. (9th 845, Cir.2000); v. Local 856 E.E.O.C. 872, (1978) (noting 55 L.Ed.2d 40 that “the (9th Cir.1993). 350, 641, 648 n. 998 F.2d prohibitions of the ADEA were derived VII.”) fact, contrast, First, Third, Sixth, haec verba from Title Sev- enth, forbidding are al questioned sections discrimination and Tenth Circuits have Compare viability most claims un- identical. U.S.C. "disparate impact” group justi- one law is whether the theo- than another cannot be ry proving liability applica- necessity.” or method of is fied business Co. ble 604, 609, 1701, [ADEA]. to claims Biggins, v. 113 S.Ct. R3-312, (internal omitted). at 2-3 citations 1705, (1993) (quoting 123 L.Ed.2d 338 Team- States, 324, sters v. n. United 335-36 A disparate that "in- claim one 15, 1855 n. 52 L.Ed.2d 396 practices are facial- volve[s] (1977)). ly neutral in their treatment of different groups harshly fact fall but more 206(d)(1) Pay See Mullin Act. Section post-Hazen.5 Equal der the (1st Raytheon 164 F.3d 700-01 Pay Act provides wage discrimination cert, denied, Cir.), gender prohibited, on the basis of unless (1999); 145 L.Ed.2d 40 E.E.O.C. v. wage “differential [is] based on School, Francis Parker 41 F.3d W. other factor other than sex.” 29 U.S.C. (7th Cir.1994); 1076-77 Ellis v. United 206(d)(l)(iv). “The Court [has] Airlines, Inc., 1006-07 206(d)(1) interpreted section Equal Cir.1996); DiBiase v. SmithKline Beec Pay preclude Act (3d Cir.1995); Corp., ham Ellis, claims.” 73 F.3d at (citing Lyon v. Ohio Educ. Ass’n and 'l Prof Staff *4 County Gunther, Washington, Ore. v. of Union, 135,139 Cir.1995). 53 F.3d n. 5 161, 170-71, 2248- in rely language These cases on (1981)); Mullin, 68 L.Ed.2d 751 suggest dispa and other factors that that (drawing F.3d at 702 same comparison).6 rate are not viable under the ADEA sufficiently The text of the distin guishable from Title VII as to raise doubts First, question courts that the via extending disparate about the impact theo bility of a claim under the ry to ADEA cases. ADEA note that the text of the ADEA differs from Title in an important YII re Turning legislative to the history, the 623(f)(1) spect. Section of the ADEA ex Mullin and Ellis courts note that the plicitly provides employer may that an ADEA Secretary was enacted after the any “take ... prohibited action otherwise report age Labor issued a on discrimina- where the differentiation is based on rea Mullin, 702-03; Ellis, tion. at age.” sonable factors other than 29 U.S.C. report, 73 F.3d at 1008. The entitled The 623(f)(1). The First Circuit has rea American Older Worker: Discrimina- soned that (1965), Employment tion in recommended if exception contained section Congress arbitrary that ban discrimina- 623(f)(1) preclude is not understood to tion, disparate such as treatment based on liability, it becomes stereotypical perceptions elderly, of the

nothing more than a bromide to the workers, affecting but that factors effect that “only age discrimination is policies such as with be disparate impact, discrimination.” Such circular fly construction would the teeth of the Ellis, ways. addressed in alternative well-settled canon statutory [of construc- Thus, history F.3d at 1008.

tion]. legislative history differs from the Mullin, at 702. Title which the Court Griggs 623(f)(1) relied on to find a cause of action addition, language

In language Equal disparate impact. Griggs, is similar to found Fourth, Fifth, requirement 5. The and D.C. Circuits have inference that the reasonableness this issue. not addressed necessity justification refers to the business that, cases, VII can used Title to defend requires 6. We note that the ADEA employment qualification dispa that has a one, "other factor” be a reasonable while the protected on in the Equal Pay "any Act finds other factor” ac light class. of the differences between the ceptable. Compare 29 U.S.C. herein, ADEA and Title VII discussed we de 206(d)(1)(iv). argued It could be cline to draw such an inference. distinguishes that this difference the ADEA Act, Equal Pay supports from the BARKETT, Judge, specially (discussing at Circuit at concurring: not- to the bill and history amendments VII, Congress specifically Title ing that for ruling I affirm the district court’s would employer the burden on the “placed case, than the in this but for reasons other must requirement showing given I upon one relied the district court.1 do relationship manifest to the have a pleads here complaint not believe the question.”). ment in impact claim sufficient to disparate qualify Thus, because I for class certification. open the Hazen left Finally, while Court plaintiffs sufficiently alleged find of whether question treat- they disparate suffered can be claim ment, and the district court’s denial of opinion suggests language First, certification on the treatment that “[dis- cannot. the Court noted appeal, I claim is not at issue ... parate captures treatment essence unnecessary premature believe it is prohibit in the Congress sought of what Hazen, address the of whether at ADEA.” addition, cognizable claims are reiterated *5 decisions, especially ADEA. I think it unwise be- that, making employment this does not lend itself to a age, such as cause use of factors correlated with status, in the abstract. pronouncement “inaccurate pension rely did and ac- stigmatizing stereotypes” and The decision as to whether a 611, at at ceptable. Id. 113 S.Ct. 1706-07. age claim is available in an discrim- impact via- position That is inconsistent with the case should made on a case ination be bility disparate impact theory of a of liabil- specific rather than on an overreli- basis requires no demonstration of ity, which from language ance on decontextualized intent, very but relies instead on the corre- Supreme decision in Hazen Court’s age the factor and the lation between used Biggins, Co. v. by harmed of those The 123 L.Ed.2d 338 liability. prove ment decision to ADEA, purposes Supreme treatment of the issue in Hazen

Court’s III. CONCLUSION and of the various Paper, consideration courts, views of our sister lead me to con- Second, Eighth, and Ninth Circuits disparate impact pled clude that can be allow claims under the proved appropriate in an case under First, Third, Sixth, Seventh, ADEA. The ADEA, a and that it cannot be said as reasoning and Tenth do not. We find the theory recovery that matter of law the First of the Tenth Circuit Ellis and can in an never be used discrimination According- persuasive. Circuit Mullin case. ly, we find that claims ADEA, all, may purpose not be First of ADA, purpose AFFIRM. like the of Title VII and the may though 1. We affirm the district court's decision result is correct even the lower court by than those stated upon wrong ground gave wrong for reasons different relied or & reason); district court. See Sec. Exch. Comm'n Turlington see v. Atlanta Gas also Chenery Corp., 318 U.S. Co., Light Cir. (1943) (stating 87 L.Ed. 626 that the decision 1998). of the lower court must be affirmed if the employment easy theory is to eradicate discrimination plead prove stigmatizing stereotypes on the context. I that probably based believe it is race, age, gender disability. Disparate more difficult claim to make under the provide an avenue for mem- ADEA than in gender a race or context protected prove bers of classes to because the of neutral policies workplace discrimination occurred which fall disproportionately on class proof when protected of motive is difficult or unavail- members the ADEA can be Beginning with Griggs proven able. v. Duke to be legitimate related to business 424, 431, Power U.S. reasons in more instances than those (1971), Supreme Court which might protected other recognized although discriminatory groups. See Paper, hidden, 610-11, 113 intent could even from the deci- S.Ct. 1701. himself, sionmaker its effects in the work- however, majority, concludes Thus,

place could not. “pro- Title VII simply claims are not via- scribes not overt discrimination but ble because Section form, practices also fair in but specifically exempts a decision based on discriminatory in operation.” Id. at factors other than notwithstanding its 91 S.Ct. 849. Accordingly, similarity to Title VII. interpreted permit Title VII to 623(f)(1). But, noted, every statu- of a protected group challenge member case, tory discrimination a decision based facially neutral practices that upon legitimate necessity business will perpetuate inequality by disproportionate- *6 support never a claim for liability. Griggs ly burdening protected a class. itself recognized repeatedly empha- However, pleading sized that disparate impact is a basis for only gets you case into only practice the courthouse. relief if the in question is not An in employer every statutory context founded on necessity,” “business or lacks can by defend a relationship case “a manifest employ- to the citing legitimate 431, necessity business for ment.” Id. at 91 S.Ct. 849. Section 623(f)(1) Thus, the neutral at issue.2 in those nothing adds new. 623(f)(1) Therefore, it cases where can be shown that the deci ADEA Section causing sion the interpreted should not anything as based on necessity, business the claim will than statutory description more Disparate be defeated.3 impact necessity is not an business defense. requires employer 2. Title VII sity plaintiff’s employ an to demon defense to claim that challenged practice job strate that the is a physical performance disparate er’s test has a necessity. related business 42 U.S.C. Dallas, impact); City Davis v. 777 F.2d 2000e-2(k)(1)(A)(i). § The ADA defines dis 205, (5th 1985) (finding city's 208 Cir. that including crimination as the use of "selection requirement applicants police officer criteria that screen out or tend to out screen completed must have 45 hours of semester disability an individual with a aor class of college average credit with at least C at ac individuals with disabilities” unless such cri college university, credited must not have job-related teria are "shown to be for the use, history marijuana or excessive recent position and [are] consistent with and must been convicted of more 12112(b)(6). necessity.” business pre three than hazardous traffic violations in months, related). ceding job 12 were See, e.g., Telephone v. Belk Southwestern Bell 946, (8th Cir.1999) (em 194 F.3d 951 ployer in ADAsuit could raise business neces

1328 Congress ADEA sever- fact, interpretive guide- has amended the the EEOC judicial lines, explicitly defer- al never exclud- are entitled times but has which fac- ence,4 suggest claims,6 “reasonable impact disparate ed reasonable in the works defense tors” is that interpretation Section necessity de- with the business tandem necessity excep- codifies business impact analysis. the disparate fense impact tion to claims. indicate an guidelines These majority’s I con- unpersuaded am de- “reasonable factors” may raise a er the Supreme Court’s de- clusion employment practices justify fense to that a provision termination similar on individ- “have adverse (“EPA”) dispa- Equal Pay Act precludes protected group.” uals within County claims. See Wash- 1625.7(d) (1999).5 29 C.F.R. 161, Gunther, ington, 170- Ore. v. between the sub- light parallels (1981). 2242, 71, 68 751 Ti- of the ADEA and provisions stantive problems analogiz- VII, and of the fact that There are several light tle (2000). Shalala, 601, (11th 29 1625.7 v. 64 F.3d 606 C.F.R. 4. Edwards (" 1995) interpretation agency's of an Cir. 'An decision, provision Griggs several courts ex ambiguous within a it is 6.After statute judicial implement analysis is entitled authorized tended ") Runyon, See, v. (quoting Jones 32 deference.’ e.g., v. Harris-Stowe State Leftwich 1454, (10th 1994)); Cir. see also 686, F.3d 1457-58 1983); Cir. College, 702 690 Mines, Inc., Pauley BethEnergy v. Markham, (2nd Geller v. Cir. 696-98, 2524, 680, L.Ed.2d 604 1980); Officers, Independent Flight United USA, (1991); Chevron Inc. Natural Re- Inc., Lines, F.Supp. Inc. v. United Air Council, sources Defense (N.D.Ill.1983). Congress has 81 L.Ed.2d times the ADEA several since amended e.g., Griggs. See Discrimination Em guidelines interpret the 5. EEOC "reasonable ployment Pub.L. Amendments of No. age” factor than defense limited other 99-592, (1986); 100 Stat. 3342 Omnibus justifiable necessity”: to factors as a "business Budget Reconciliation Act of Pub.L. No. (d) practice, When an includ- 99-509, 100 Stat. 1973-75 *7 test, ing a as a basis different is claimed for (1986); Budget Consolidated Rec Omnibus employees applicants or for treatment of 99-272, Act of No. onciliation Pub.L. grounds on the it is 9201(b), (1986); prac- 100 Stat. "factor other than” Older such impact tice an has adverse individuals Americans Act Amendments of Pub.L. protected age group, only 98-459, (1984). the within it can No. 98 Stat. 1792 justified necessity. as a business Tests pro None of the amendments have limited which are as factors asserted "reasonable disparate analysis. hibited See also age” other than will be in ac- scrutinized Dist., v. EEOC Governor Sch. Mifflin cordance the standards with set forth (E.D.Pa.1985) F.Supp. (analyzing 740-41 1607 of Title. Part (e) this finding pro to the ADEAand no amendments exception "a When the reasonable claims). against hibition age” against factor other than is raised presumed "Congress is be aware of an to discriminatory individual claim of ment, treat- judicial interpretation of administrative or employer the the bears burden of adopt interpretation to when statute and showing that the "reasonable factor other change.” it re-enacts a statute without Loril age” factually. than exists Pons, 575, 580, lard v. (1) average A differentiation based on employing cost of as a group except respect to unlawful employee plants qualify which for benefit 4(f)(2) exception to the section the Act. First, from the EPA to the ADEA. termination of an ing employee who was close provisions to vesting pension plan. case concerns substantive under his As the ADEA, recognized, Court recognized which have been could have affected provisions “younger” common substantive “older” and share as workers alike. underlying The crucial fact provisions Title and not the remedial Su- preme Paper ADEA Court’s decision in Hazen of the which are similar to the was that Hazen Paper decided to fire provisions remedial of the EPA. Wallace plaintiff on the pension basis of his Dunn status Construction which, (11th Cir.1995). 206(d)(1) company’s policy, Second, Section service, years based on age. permits EPA discrepancies wages explained Court that “an employee’s age paid “any male and female workers for analytically years distinct from his of ser- other factors other than sex.” 29 U.S.C. 611,113 vice.” Id. at S.Ct. 1701. 206(d)(l)(iv). EPA merely thus re- quires employer provide a neutral employee An younger who is than explanation disparity pay. The and therefore outside the class of older broad employers EPA’s defense for en- ADEA, workers as defined see 29 sures that the Act targets intentional 631(a), may U.S.C. for a worked contrast, purposeful discrimination.7 particular employer career, his entire ADEA, under section while an older may worker have been employer must demonstrate the reason- newly years hired. Because ableness of the neutral factor. The distinct, service analytically an em- ADEA’s narrow limitation of liability en- ployer can take account of one while the Act all arbitrary sures reaches other, ignoring the and thus it is incor- age discrimination. say rect that a decision based on years of service is necessarily “age Furthermore, I disagree major- with the based.” ity’s interpretation of Paper pre- Hazen cluding disparate impact claims under the Id. Accordingly, the claimant could not ADEA. The took prevail basis, when he was fired on this great say care to explicitly that that deci- though years even he was 62 old. The sion should not be read to address a dispa- Court held that the motivation to avoid the case: have never decid- “[W]e vesting of pension benefits was insufficient ed a disparate impact theory whether to state a treatment claim under liability is available under the because the evidence did not *8 we need not do so Paper, here.” Hazen Paper’s show that Hazen decision was (“When 507 U.S. at 1701. In S.Ct. Hazen plaintiffs age. based on the Id. Paper, policy the neutral at issue employer’s was the decision is wholly motivated Gunther, 7. See at bona fide use of 'other factors other than (noting comparison ”); in to Title University, sex.’ Varner v. Illinois State claims, permits disparate impact which (7th Cir.2000) (“By providing Equal Pay designed differently, Act "was exemption broad from application wage confine the of the Act to Equal Pay any employer Act for who can differentials attributable to sex discrimina- provide explanation disparity a neutral for a therefore, Equal Pay litigation, tion. ... Act pay, Congress effectively targeted in has em- permit employers has been structured to ployers intentionally against who discriminate against charges defend of discrimination women.”). pay where their differentials are based aon a valid claim of age, problem of workers stated than other by factors ADEA). Furthermore, stereotypes impact under the stigmatizing inaccurate stated that it did explicitly the Court not true if the moti- 'This is even disappears. consider a which the situation age, is correlated vating factor is.”). rather pension age, status is based on However, ee’s typically status pension years than of service: clear that: the Court also made special do consider the [W]e not case the possibility that preclude We do not an to vest in employee where about targets employees with employer an who age, pension benefits as result his the as- pension status on particular years rather than and the service likely employees that these sumption employer employee fires the order to dis- thereby engages age to be older vesting. prevent may be a Pension status crimination. not the sense

proxy for (citation Paper, Hazen 507 U.S. at 613 equivalent, two ADEA makes the factors omitted). employer may but the sense Finally, majority is the view that the two suppose a correlation between legislative history sug- accordingly. factors and act dispa- not enacted to address gests was (citation 612-13,113 omit- S.Ct. 1701 Id. claims, citing com- report ted). Thus, did rule out the the Court not Labor, Secretary missioned from the employer’s purported an possibility that Dis- The Older American Worker: age-proxy on could reflect reliance Employment crimination in gener- type denigrating of “inaccurate report Congress pro- recommended that age” alization about discrimination,” “arbitrary hibit but that Id. at designed prohibit. workers” factors which “affect older nothing For example, there programmatic mea- through addressed that addresses opportunities for older improve sures employer’s to an insur- impact challenge report Id. at 21-25. That differ- workers. provide coverage policy might ance which what “arbi- entiated between it termed affecting young health em- problems for trary discrimination” based coverage but for health ployees, exclude resulting from that “af- problems factors (for affecting older problems strongly, fect older more as a workers example, a which but covered braces they employees.” than group, younger do dentures, cover- policy generally or a majority Id. at 11. The concludes that ing progressive, dis- neurodegenerativo precludes disparate this claims be- disease). except eases Alzheimer’s cause are claims these address Employ- Arnett also Public “factors that affect workers more California System, Retirement 179 F.3d 690 ees arbitrary strongly,” not discrimination. Cir.1999), and remanded on other vacated begs question. very But grounds, question disparate impact analysis seeks to *9 (2000) (plaintiffs’ L.Ed.2d 807 claim that challenged policy answer is whether the disability employer’s program benefits disproportionately impacts poten- which discriminated the basis of workers derived from reasonable busi- service, years tial than actual judgment rather ness or whether the service, arbitrary years adversely affected older result of discrimination. Claim- opportunity prove ants should have the the latter.

it when is TINKER, Petitioner-Appellant,

Gerald MOORE, Respondent-

Michael W.

Appellee.

No. 00-11399.

United States Appeals, Court of

Eleventh Circuit.

July