Melvin Davis, et al. v. Coca-Cola Bottling Co. Consolidated

The plaintiffs in this employment discrimination case brought under Title
VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and 42 U.S.C. §
1981, are seven employees and two former employees of Coca-Cola Bottling Co.
Consolidated ("CCBCC"). In their complaint, they allege that CCBCC is
maintaining a "pattern or practice" of discrimination against them and all other
similarly situated employees on account of their race, which is black, with respect
to hiring, promotion, pay, a racially hostile workplace environment, and light work
assignments.1 After the case proceeded through several rounds of pleadings,
partially dispositive rulings on motions,3 and considerable discovery, plaintiffs'
claims of race discrimination under Title VII and § 1981 boiled down to claims
that CCBCC: has a pattern or practice of subjectively hiring supervisors, in which
qualified blacks are not meaningfully considered;4 preferred whites in awarding
light work assignments; maintained a racially hostile work environment; and twice
retaliated against one of the plaintiffs for complaining about race discrimination in
the workplace.

The district court ruled on the legal sufficiency of these claims on CCBCC's
motion for summary judgment.5 First, the court dismissed plaintiffs' pattern or
practice claims on the ground that a pattern or practice claim is available only as a
class action and plaintiffs had not sought class certification. Next, the court
granted CCBCC summary judgment on all of plaintiffs' individual hiring and light
duty claims brought under Title VII as time-barred. Finally, the court granted
summary judgment on all of plaintiffs' individual § 1981 claims. All but four §
1981 claims – two light duty claims and two retaliation claims – were found timebarred.
They were dismissed on the merits, for lack of proof.6

Plaintiffs now appeal, arguing that the district court erred in holding that a
pattern or practice claim (as it relates to the manner in which CCBCC hires
supervisors) must be brought as a class action. They also argue that the court
erred in dismissing their individual § 1981 claims as time-barred or for lack of
proof and all of their Title VII claims as time-barred.7 Finally, plaintiffs complain
that the court overlooked several hiring claims that were not explicitly set out in
their complaint but were called to the court's attention in their opposition to
CCBCC's motion for summary judgment. We affirm the district court's judgment
with the exception of two Title VII hiring claims, which we remand for further
proceedings.

We begin by describing plaintiffs' employment – in particular, how CCBCC
To simplify discussion, we treat all p 8 laintiffs as current employees unless otherwise
indicated.

I.

A.

CCBCC is a soft drink production, bottling, and distribution corporation
with operations throughout the southeast United States. Plaintiffs Melvin Davis,
Leander Foster, Michael Fox, Randolph Hatcher, Terry Jackson, Warren Law, and
Attress Logan are current employees at CCBCC's Mobile, Alabama facility;
Frederick Watson and Lorenzo Martin are former employees.8 The employees at
the Mobile facility are assigned to divisions: production, sales, and truck
maintenance. The sales division is subdivided by types of customers and routes:
bulk, conventional, cold drink, and full-service. Most of the plaintiffs work in the
sales division, delivering drinks to these customers.

Plaintiffs are non-supervisory employees. CCBCC's non-supervisory
employees are members of a bargaining unit represented by Local 991 of the
International Brotherhood of Teamsters, Chauffeurs, Warehousemen, and Helpers
of America ("the union") and are paid by the hour.9 A collective bargaining
agreement regulates the terms and conditions of their employment, including the
assignment of light work.

Supervisors are non-union and are paid salaries. Because they are nonunion,
the collective bargaining agreement does not regulate the terms and
conditions of their employment. Before plaintiffs filed the EEOC charges that led
to this litigation, CCBCC would fill a vacant supervisory position by word of
mouth. Management would encourage specific non-supervisory employees to
apply for the position and occasionally would solicit applications from outside the
company. When the non-supervisory employees learned of a vacancy, some
would apply. After all the applications were in, a panel of three – which would
normally include the Mobile facility human resources manager, or a member of his
staff, and the person responsible for supervising the open position – would
interview the applicants. CCBCC ceased the word-of-mouth practice, and began
posting vacancies, after plaintiffs filed their EEOC complaints. Plaintiffs Jackson,
Logan, Fox, and Davis were interviewed for supervisory positions prior to filing
their EEOC complaints and before CCBCC changed its word-of-mouth policy.

Regarding light work, the collective bargaining agreement provides that
light work within an injured employee's medical restrictions can be assigned when
such is available. CCBCC's supervisors determine whether and what type of light
work might be available; human resources decides whether the available work fits
the restrictions of the injured employee.10

B.

The complaint in this case contains three counts, two of which are relevant
here.11 Count I, brought under Title VII, alleges that CCBCC discriminates
against its black non-supervisory employees, as a class, by maintaining a pattern
or practice of race discrimination as to "pay, raises, benefits, ability to advance,
and right to be free of racial discrimination, harassment and intimidation, and
other terms and conditions of employment." Count I asks that the maintenance of
the pattern or practice be declared unlawful and enjoined, and seeks equitable and
legal relief for each of the named plaintiffs. Count II incorporates the allegations
and prayers for relief of Count I and alleges, in addition, that CCBCC's conduct
"deprive[s] plaintiffs of the same . . . contract[] [rights] as is enjoyed by similarly
situated white persons in violation of 42 U.S.C. § 1981." The complaint contains
no count in which a plaintiff alleges that he was, or is, a victim of one or more
specific features of the above pattern or practice of race discrimination. Rather,
the complaint implies – in Counts I and II and the prefatory allegations preceding
Count I – that all nine plaintiffs, and all other black non-supervisory employees of
CCBCC, have experienced, and are continuing to suffer from, all of the features of
the alleged pattern or practice.

As we indicate in our introduction to this opinion, by the time the district
court took CCBCC's motion for summary judgment under advisement,12 plaintiffs'
claims had been reduced essentially to those we address in this opinion. Plaintiffs'
pattern or practice claim, which relates to CCBCC's method of hiring supervisors,
had been dismissed because, in the court's view, a pattern or practice claim can
only be maintained as a class action and plaintiffs had not sought class
certification.13 What remained of the pattern or practice claim, therefore, were the
individual claims: each plaintiff contended that CCBCC had refused to promote
him to a vacant supervisory position because of his race. The court granted
CCBCC summary judgment on these claims as time-barred under both Title VII
and § 1981.14 The court then addressed plaintiffs' light work and retaliation
claims, brought under Title VII and § 1981, and held that they were either timebarred
or, like plaintiffs' individual hostile work environment claims, failed for
lack of proof.15

We now turn to the issues this appeal presents. We begin with the question
of whether the district court erred in ruling that plaintiffs, proceeding individually
or collectively rather than as class action representatives, could not prosecute a
pattern or practice claim.

II.

A.

Section 707(a) of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-6(a),
entitles the Government16 to bring a pattern or practice claim on behalf of a class
of similarly situated employees for declaratory and injunctive relief against an
ongoing act of intentional discrimination in violation of Title VII.17 A pattern or
practice claim for such relief may also be brought under Title VII as a class action,
pursuant to Federal Rule of Civil Procedure 23(b)(2), by one or more of the
similarly situated employees. See Cooper v. Federal Reserve Bank of Richmond,
467 U.S. 867, 876 n.9, 104 S. Ct. 2794, 2800, 81 L. Ed. 2d 718 (1984) ("[I]t is
plain that the elements of a prima facie pattern-or-practice case are the same in a
private class action [as when the Government brings the claim]."). In addition to
praying for declaratory and injunctive relief, the complaint may also seek back pay
on behalf of individual class members who have been injured by the employer's
discriminatory practice. 42 U.S.C. § 2000e-5(g)(1). We have referred to such
complaint as presenting a "hybrid Rule 23(b)(2) class action." Cox v. Am. Cast
Iron Pipe Co., 784 F.2d 1546, 1554 (11th Cir. 1986).18

The court must address two issues before proceeding to adjudicate as a class
action a pattern or practice claim. First, the court must determine whether the
named plaintiff has standing to prosecute the claim on behalf of similarly-situated
employees. See Murray v. U.S. Bank Trust Nat'l Ass'n, 365 F.3d 1284, 1288 n.7
(11th Cir. 2004). Only someone who claims he has been, or is likely to be, harmed
by the ongoing discriminatory practice has an adequate stake in the litigation to
satisfy the "case or controversy" requirement of Article III. See Flast v. Cohen,
392 U.S. 83, 99-101, 88 S. Ct. 1942, 1952, 20 L. Ed. 2d 947 (1968).19 If the
named plaintiff lacks standing to sue, he cannot prosecute the pattern or practice
claim, and unless an employee who has been, or is likely to be, harmed by the
discriminatory practice is substituted as the named plaintiff, the claim fails.

Second, assuming the named plaintiff has standing to sue, the court must
determine whether Rule 23(a)'s requirements of numerosity, commonality,
typicality, and adequacy are satisfied,20 and whether, as required by Rule 23(b)(2),
the defendant "has acted or refused to act on grounds that apply generally to the
class, so that final injunctive relief or corresponding declaratory relief []
appropriate respecting the class as a whole." Fed. R. Civ. P. 23(b)(2).

If the court resolves these two issues in favor of proceeding with the class
litigation and, at the conclusion of the first stage, finds that the employer has an
ongoing practice of discrimination against the plaintiff class, declares the practice
invalid and enjoins the practice, the case advances to the second stage. There,
individual class members may seek redress for injuries sustained, perhaps in
separate proceedings. See Int'l Bhd. of Teamsters v. United States, 431 U.S. 324,
361, 97 S. Ct. 1843, 1868, 1855, 52 L. Ed. 2d 396 (1977).21 Because the court's
"finding of a pattern or practice changed the position of the employer to that of a
proved wrongdoer," each class member seeking redress may rely on that finding as
circumstantial evidence that the employer made the challenged employment
decision with intent to discriminate. Id. at 359 n.45, 97 S. Ct. at 1867. See also
Rutstein v. Avis Rent-A-Car Sys., Inc., 211 F.3d 1228, 1238 n.18 (11th Cir. 2000).
In that case, the employer bears the burden of proving that the challenged
decision, made when the discriminatory practice was in force, was not made in
pursuit of that practice but was, instead, made because that claimant was
unqualified for the benefit he sought. Cox, 784 F.2d at 1559.

If the court denies the plaintiffs relief in the first stage, however, because
the named plaintiff failed to establish the alleged pattern or practice, the class
claim is dismissed.22 Hence, all that remains are the claims of the individual class
members, and those claims will be litigated under the familiar McDonnell Douglas
burden-shifting framework. See McDonnell Douglas Corp. v. Green, 411 U.S.
792, 802, 93 S. Ct. 1817, 1824, 36 L. Ed. 2d 668 (1973).23

B.

1.

Plaintiffs argue that nothing in our precedent precludes them, as individuals,
from prosecuting a pattern or practice claim for declaratory and injunctive relief
without being certified as class representatives,24 and that the district court
therefore erred in dismissing their claim.25 We acknowledge that our precedent
does not explicitly foreclose plaintiffs' argument; plaintiffs give no indication,
however, of comprehending why private pattern or practice claims for such relief
must be litigated either as class actions or not at all.

Plaintiffs' complaint – to the extent it implicates CCBCC's practice of
hiring supervisors – presented, in essence, a typical hybrid Rule 23(b)(2) class
action.26 That is to say, the complaint alleged that CCBCC's word-of-mouth
practice of hiring supervisors is ongoing and applies to all black CCBCC
employees who, like the named plaintiffs, are qualified to hold supervisory
positions that go to white employees and white outsiders. And it all but stated that
these black employees constituted a class and that the named plaintiffs were
representing them. We say this because the complaint asked for the type of relief
stage one of a Rule 23(b)(2) class action would afford – a declaration that the
word-of-mouth hiring practice discriminated against blacks and an injunction
against its continued use – relief that would inure to the benefit not only of the
named plaintiffs but to similarly situated black employees as well. The complaint
also presented the claims of the individual plaintiffs in the form of back pay and
other monetary relief, stage two of a hybrid Rule 23(b)(2) class action.

A Rule 23(b)(2) class certification would give the named plaintiffs standing
to represent the claims of the unnamed class members for declaratory and
injunctive relief. Without Rule 23(b)(2) certification, however, the named
plaintiffs lack standing to pursue such relief for themselves, because the complaint
did not allege a likelihood that they will be denied a supervisory position in the
future.27 See City of Los Angeles v. Lyons, 461 U.S. 95, 106 n.7, 103 S. Ct. 1660,
1667, 75 L. Ed. 2d 675 (1983) (To have constitutional standing to seek injunctive
relief, a "[plaintiff] would have to credibly allege that he faced a realistic threat
from the future application of the [defendant's] policy."). And as a prudential
matter, absent Rule 23(b)(2) certification, they lack standing to represent the
absent unnamed class members.28 United Food and Commercial Workers v.
Brown Group, 517 U.S. 544, 557, 116 S. Ct. 1529, 1536, 134 L. Ed. 2d 758 (1996)
("‘[T]he general prohibition on a litigant's raising another person's legal rights' is
a ‘judicially self-imposed limit on the exercise of federal jurisdiction,' not a
constitutional mandate.") (quoting Allen v. Wright, 468 U.S. 737, 751, 104 S. Ct.
3315, 3324, 82 L. Ed. 2d 556 (1984)). In short, plaintiffs lacked standing to
obtain the sort of declaratory and injunctive relief Title VII provides an employee
class under Rule 23(b)(2) – the broad scope of relief Congress envisioned in
enacting section 707(a) of the Civil Rights Act of 1964.29

The prudence of the general prohibition on third-party standing is
particularly acute in the employment discrimination context. When a complaint
appears, as here, to constitute a class action, the statute of limitations is tolled as of
the date the complaint is filed, and it remains tolled until the court rejects class
certification or the case comes to an end. See American Pipe & Constr. Co. v.
Utah, 414 U.S. 538, 552-53, 94 S. Ct. 756, 765-66, 38 L. Ed. 2d 713 (1974).
Potential class members need to know where they stand; are they to become
members of a certified class, or must they proceed with their own lawsuits? May
they piggyback on the named plaintiffs' EEOC charges, or must they file their
own? See Albermarle Paper Co. v. Moody, 422 U.S. 405, 414 n.8, 95 S. Ct. 2362,
2370, 45 L. Ed. 2d 280 (1975).

Most important, perhaps, are the potential res judicata and collateral
estoppel issues that would arise if the law permitted an individual to prosecute a
pattern or practice claim without formally representing all similarly-situated
employees. As it stands, if a class is certified and the employer prevails on the
pattern or practice issue, unnamed class members would be barred by res judicata
from asserting the pattern or practice claim in a separate proceeding, even though
they might retain their individual disparate treatment actions against the employer.

If a class is not certified and the employee prevails, however, whether the
unnamed class members would be barred by the doctrine of issue preclusion fm
proceeding against the employer would be problematical.

Here, plaintiffs sought declaratory and injunctive relief in their complaint,
thus appearing to represent that they were prosecuting a pattern or practice claim
on behalf of CCBCC's black non-supervisory employees at the Mobile facility.
Several of our sister circuits have already 30 recognized the prudence of limiting a private
pattern or practice claim to certified class actions. See Bacon v. Honda, 370 F.3d 565, 575 (6th
Cir. 2004); Lowery v. Circuit City Stores, Inc., 158 F.3d 742, 760-61 (4th Cir. 1998), vacated on
other grounds, 527 U.S. 1031, 119 S. Ct. 2388, 144 L. Ed. 2d 790 (1999); Brown v. Coach
Stores, Inc., 163 F.3d 706, 711 (2d Cir. 1998).

But they did not ask the court to certify the class. The court therefore assumed –
and we speculate here because the record is silent on the point – that plaintiffs did
not intend to seek certification, and entered an order, on CCBCC's first Rule 12(c)
motion for judgment on the pleadings, holding that plaintiffs could not prosecute
their pattern or practice claim as if they were prosecuting a class action under Rule
23(b)(2). Finally, by the time the court took CCBCC's motion for summary
judgment under advisement, plaintiffs had all but formally abandoned their prayer
for declaratory and injunctive relief on their pattern or practice claim. In sum, the
district court did not err in dismissing plaintiffs' pattern or practice claim qua
claim.30

2.

Anticipating our holding, plaintiffs argue that the pattern or practice
allegations and the evidence they presented in support thereof were intended to
perform two functions in addition to serving as the basis for an independent, freestanding
claim: (1) to avoid the Title VII and § 1981 time-bars, and (2) to shift to
the employer, as wrongdoer under both statutes, the burden of proving that its
refusal to hire them as supervisors was not made in pursuit of its unlawful pattern
or practice, but was made instead for a race-neutral reason.31 We do not reach the
second function because the district court denied relief on plaintiffs' hiring claims
on the ground that they were time-barred.32 We do, however, reach the first
function and determine the time-bar issues.

III.

Plaintiffs contend that CCBCC's pattern or practice of race discrimination
constituted a "continuing violation."33 Accordingly, they argue, neither Title VII's
180-day limitations period nor § 1981's borrowed statutes of limitations – two
years for hiring and four years for light work assignments – bars recovery for a
hiring or light work event that occurred prior to these limitations periods. The
district court held that these events constituted discrete acts of discrimination, and
therefore were subject to the relevant time bars.

National Railroad Passenger Corp. v. Morgan, 536 U.S. 101, 122 S. Ct.
2061, 153 L. Ed. 2d 106 (2002), involved claims by a former employee that his
employer had engaged in discrete acts of race discrimination and retaliation and
had maintained a racially hostile work environment. The Supreme Court held that
if the act gives rise to a cause of action under Title VII, then it is subject to Title
VII's 180-day limitations period. Id. at 114-15, 122 S. Ct. at 2073. The acts the
employee complained of were actionable and occurred prior to the 180-day period,
so they were barred. As for the hostile work environment claim that spanned the
180-day period, the Court held the claim actionable, even though some of the acts
establishing the claim occurred outside that limitations period. Id. at 117, 122 S.
Ct. at 2074.34 This court has applied Morgan's teaching to claims under § 1981 as
well as Title VII. Shields v. Fort James Corp., 305 F.3d 1280, 1282 (11th Cir.
2002).

In this case, CCBCC's hiring decisions, light work assignments, and alleged
retaliation constituted discrete acts, not acts that were part of a hostile work
environment. In that plaintiffs' pattern or practice allegations could not avoid the
Title VII and § 1981 time-bars applicable to these acts, the district court did not
err in treating such acts as discrete acts under Morgan and in holding some of
them time-barred.35 What remains for our decision is whether the court erred in
holding three Title VII hiring claims time-barred and in rejecting on the merits
three § 1981 light work claims, one of which was brought under Title VII as well,
and two § 1981 retaliation claims.36 In the next part, we take up the three hiring
claims. We also consider whether the court should have recognized sixteen hiring
claims not explicitly asserted in plaintiffs' complaint but mentioned in memoranda
plaintiffs filed in opposition to CCBCC's motion for summary judgment.37

IV.

A.

Plaintiffs Melvin Davis and Terry Jackson contend that the district court
erred in holding their hiring claims time-barred. Davis's claim is based on the
hiring of John Gilbert, a white employee, to the position of Bulk Supervisor in
"March of 2000."38 Jackson has two claims: the first is based on the hiring of
David Presnall, as Production Supervisor, in March 2000; the second is based on
the hiring of Paul Schum, as Production Scheduler, in July 2000. Both Presnall
and Schum are white. We consider these claims in sequence.

Davis's problem is that plaintiffs' opening brief does not challenge the
Gilbert hiring at all. There is no mention of Davis's claim in the brief's Statement
of Issues, Statement of Case, or Argument. The only mention of Davis by name is
in the brief's Statement of Facts, in footnote 3, which repeats the complaint's
allegation that "[i]n March 2000, John Gilbert, a white male, was promoted to a
position as Bulk Account Manager." Appellants' Br. at 11, n.3. CCBCC's answer
brief says nothing at all about the Gilbert hiring. Plaintiffs' reply brief, though,
devotes an entire section to the John Gilbert hiring in March 2000 to the position
of Bulk Accounts Manager. The reply brief states for the first time that all of the
plaintiffs, which necessarily would include Davis, "established a prima facie case"
regarding Gilbert's March 2000 hiring (which was within Title VII's 180-day
limitations period). Appellants' Reply Br. at 17.
It is well settled in this circuit that an argument not included in the
appellant's opening brief is deemed abandoned. Asociacion de Empleados del
Area Canalera v. Panama Canal Comm'n, 453 F.3d 1309, 1316 n.7 (11th Cir.
2006). And presenting the argument in the appellant's reply does not somehow
resurrect it. Id.; Lovett v. Ray, 327 F.3d 1181, 1183 (11th Cir. 2003). The district
court denied Davis's claim as time-barred. We affirm the court's decision not on
the ground that the claim is time-barred, but on the ground that the claim has been
abandoned. We proceed now to a consideration of Jackson's claims.

In granting CCBCC summary judgment, the district court made no mention
of Jackson's claims concerning the Presnall and Schum hirings. Rather, the court
disposed of them sub silentio in stating that all of plaintiffs' hiring claims were
time-barred.39 Jackson argues that the two claims – both arising during Title VII's
180-day limitations period – were timely. CCBCC, in its answer brief, admits that
the claims are timely. Appellee's Br. at 32. The question thus becomes whether
we remand Jackson's claims to the district court for further proceedings on the
merits, or exercise our discretion to affirm the court's disposition of the claims on
a ground the court did not explicitly consider.40 See U.S. v. Simmons, 368 F.3d
1335, 1342 (11th Cir. 2004) ("[W]e have the authority to affirm the district court,
even if it is on a ground other than that upon which it based its decision."). We
have examined the record and cannot say with confidence that Jackson's claims,
viewed within the McDonnell Douglas framework, fail as a matter of law.41 We
therefore remand them to the district court for further proceedings.

B.

Plaintiffs fault the district court for summarily rejecting some sixteen hiring
claims that were set out and argued in the memoranda they filed in opposition to
CCBCC's motion for summary judgment, but were not explicitly pled in their
complaint. The hirings at issue are the Presnall and Schum hirings in March and
July 2000, respectively.42 The court rejected the claims with this cursory
statement: "[t]o the extent plaintiffs seek to include additional [hiring] decisions
not identified in the complaint, those additional claims are not properly brought in
this action."

Federal Rule of Civil Procedure 8(a)(2) requires a complaint to contain "a
short and plain statement of the claim showing that the pleader is entitled to
relief." The point is to "give the defendant fair notice of what the claim is and the
grounds upon which it rests." Bell Atlantic Corp. v. Twombly, 127 S. Ct. 1955,
1964 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47, 78 S. Ct. 99, 103, 2 L.
Ed.2d 80 (1957)). To that end, a complaint's "[f]actual allegations must be
enough to raise a right to relief above the speculative level." Id. at 1965.

Although a Title VII complaint need not allege facts sufficient to make out a
classic McDonnell Douglas prima facie case, Swierkiewicz v. Sorema N.A., 534
U.S. 506, 511, 122 S. Ct. 992, 997, 152 L. Ed. 2d 1 (2002), it must provide
"enough factual matter (taken as true) to suggest" intentional race discrimination.
See Twombly, 127 S. Ct. at 1965.43

Plaintiffs argue that their complaint sufficiently pled sixteen individual
claims – two for each plaintiff (other than Jackson) – based on the Presnall and
Schum hirings. The closest the complaint ever comes to pleading those sixteen
claims, however, is when it states plaintiffs were "denied promotions . . . and
treated differently than similarly situated white employees solely because of []
race." That statement epitomizes speculation and therefore does not amount to a
short and plain statement of their claim under Rule 8(a). See id. at 1964.
Plaintiffs attempt to get around this pleading problem by pointing out that,
as alleged in their complaint, they could not cite discriminatory hirings of which
they were unaware at the time the complaint was filed; therefore, the Presnall and
44 Plaintiffs responded to CCBCC's motion for summary judgment twice: on November
19, 2003, and January 3, 2005.

Schum hirings could not have been cited as having been wrought by CCBCC's
secretive hiring policy, which prevented them from knowing when a supervisor
was hired. The best they could do, their argument goes, was allege discrimination
as to the hirings of which they were actually aware and state generally that they
were discriminated against as to other, unknown hirings as well. Once they
learned about the Presnall and Schum hirings, they were diligent in bringing those
hirings to the court's attention, having done so in their responses to CCBCC's
motion for summary judgment.44 They urge that this satisfies the demands of Rule
8(a).

Plaintiffs also point out that they should not be expected to plead in their
complaint more facts than necessary to satisfy their a prima facie case under
McDonnell Douglas. Because a Title VII individual discrimination "prima facie
case is designed to include only evidence that is objectively verifiable and either
easily obtainable or within the plaintiff's possession," Vessells v. Atlanta
Independent School System, 408 F.3d 763, 769 (2005), they should not be
required to plead a claim based on a hiring unknown to them.

Plaintiffs' position is unavailing because plaintiffs possessed information
about the Presnall and Schum hirings before they filed their complaint. The
complaint cites those hirings but only in the context of Jackson's claims. If, as the
remaining plaintiffs now contend, they would have applied for those supervisory
positions had they known about them, the complaint should have alleged that and
claimed that the hirings were discriminatory as to them.45 It is clear, however, that
no plaintiff other than Jackson brought claims based on the Presnall and Schum
hirings.

V.

Leander Foster and Warren Law argue that the district court erred in
granting summary judgment denying on the merits their § 1981 claims of disparate
treatment in CCBCC's denial of their requests for light duty.46 Frederick Watson
argues that the court erred in denying three claims. First, CCBCC refused his
request for light work on account of his race. Second, CCBCC retaliated against
him for filing an EEOC charge on August 1, 2000, by downgrading his job
assignment in January 2001. Third, CCBCC discharged him in April 2001 for
filing the August 1, 2000 EEOC charge and because of his race. The first claim
was timely under § 1981 but not under Title VII; the second claim was not pled in
the complaint but would have been timely under § 1981; and the third claim was
timely under both § 1981 and Title VII. We first address Foster's and Law's
arguments, then Watson's.

A.

The district court denied Foster's and Law's light duty claims because they
failed to establish two elements of a prima facie case under McDonnell Douglas:
(1) that light work was available at the time they requested it, and (2) that the work
was given to a similarly situated white employee. As evidence that the court erred
as to the first element, they cite the EEOC "Determination[s]," attached to the
complaint as Exhibits B and E, which state: "A union representative states that
there is always enough work available to allow for light duty assignments."47 We
assume that the court took this statement into account and that it amounted to
proof that light work was available at the time Foster and Law needed it. Their
problem is that, as the collective bargaining agreement stipulated, an employee
could not be given light work unless it was within his medical restrictions. The
complaint does not allege that light work was available within their medical
restrictions; nor did Foster or Law respond to CCBCC's motion for summary
judgment with proof that it was. As the district court stated in its order granting
summary judgment:

[Plaintiffs] do not cite evidence concerning the nature or duration of
their own medical limitations or compare those limitations to those of
any of the white co-employees who allegedly were given light duty
assignments. They do not identify the types of light duty assignments
they might have been able to perform nor offer evidence that any light
duty work within their limitations was available at the time of their
injuries.

It requires no citation of authority to conclude, as the district court did, that Foster
and Law failed to establish their light work claims.

B.

1.

The district court denied Watson's light work claim without explication.
The complaint describes the claim with the following language:
On or about July 26, 1999, Watson suffered an on the job injury
which required medical attention. Shortly after being injured, Watson
requested to return to work on light duty status. [CCBCC] denied
Watson's request on the basis that there were no light duty positions
available. CCBCC has allowed several white employees who have
sustained similar or worse injuries to return to work in a light duty
status. Because Watson was not allowed to return to work in a light
duty status, he was forced to apply for workers' compensation
benefits, which only equaled sixty-five percent of his regular salary.
CCBCC's a 48 nswer brief does not deny that Watson's § 1981 light work claim was
timely. Watson brought the claim under Title VII as well, but it was untimely, and plaintiffs'
opening brief does not assert the contrary.

This claim was not time-barred;48 thus, we assume that the court considered the
claim on its merits and found it patently frivolous and therefore unworthy of
comment.

Watson was injured while engaged in his Bulk Account Manager duties.49
Between July 26, 1999, and the termination of his employment with CCBCC on
April 17, 2001, Watson was attended to in Mobile by American Family Care and
eight physicians of varying specialties. Watson returned to work in early August
1999, and continued working as a Bulk Account Manager – at his regular pay of
$959 per week – with the aid of an assistant, who performed the tasks Watson
could no longer handle. This arrangement lasted until late October 1999. After
that, and for a two week period, he was engaged in training a relief salesman.
While doing this, he was paid as a Senior Salesman.

Watson's light work claim fails because, during the time he says he should
have been given light work, he was back at work as a Bulk Account Manager,
albeit with the assistance of a helper who did the things his disability precluded
him from doing. By late October 1999, his ability to continue was doubtful, and
by January, his physicians concluded that he was totally disabled, on a temporary
basis. We find no basis in the record for vacating the court's judgment on this
claim and remanding it for submission to a jury.

2.

Watson claims that CCBCC retaliated against him – because of the EEOC
charge he had filed on August 1, 2000 – after he returned to work in January 2001.
The retaliation consisted of what he labels "downgrading" his job assignment.
CCBCC referred to it as light work because it fit his medical restrictions. The
district court denied the claim on the ground that the complaint did not present it.
Alternatively, the court found the claim meritless (1) for lack of a causal
connection between the filing of the EEOC charge and the downgrading
assignment in January and (2) because EEOC had a lawful reason for the job
assignment. We agree with the district court that the claim fails on both grounds.

Plaintiffs' opening brief points to nothing in the complaint that reasonably
could be read to allege this claim. Rather, the brief only addresses the merits of
the claim, as if it had been well pled, and the record contains some evidence of the
circumstances surrounding Watson's return to work.

In January 2000, Watson's physicians found him totally disabled. For fiftytwo
weeks, he was out of work, drawing temporary total disability workers'
compensation benefits at the rate of $550 per week. He remained on temporary
total disability until January 2001. By that time, according to his physicians, he
had reached maximum recovery, with a permanent partial disability rating, as
indicated in the margin.50 He returned to work early that month under permanent
restrictions: "No lifting or pulling in excess of 15 pounds on a frequent basis. No
lifting or pulling in excess of 30 pounds on an infrequent basis. No carrying in
excess of 25 pounds with right arm. No carrying in excess of 15 pounds with left
arm."51 CCBCC assigned Watson temporary work that accommodated these
restrictions. The work included, in his words, "scrubbing [soft drink] coolers."
He scrubbed them "in the mall [and] at high schools on [his] hands and knees."
He considered this work demeaning and claims he was assigned to it in retaliation
for having filed the EEOC charge on August 1, 2000, while he was out of work
drawing temporary total disability benefits.

Employing the framework for deciding retaliation claims under Title VII
(which governs retaliation claims under § 1981),52 the court rejected Watson's
retaliation claim on two grounds: (1) the filing of the EEOC charge was too
remote to his return to work five months later to establish causation, and (2)
CCBCC's reason for assigning Watson to the work at issue – that the decision was
based on Watson's medical disability – was legitimate and unrebutted. Assuming
for our purposes here that whether the filing of the charge was causally related to
the work assignment presents an issue of fact sufficient to withstand summary
judgment, we are convinced that CCBCC's unrebutted reason for the assignment
is unassailable.

3.

Watson claims that his discharge on April 17, 2001, was in further
retaliation for having filed the August 1, 2000 EEOC charge and because of his
race. The complaint states that
Title VII – to create a job that would accommodate his limitations.53 As a
consequence, since the retaliatory downgrading claim fails for lack of proof, it
follows that the employment termination claim fails as well.

VI.

A.

If the framers of the Federal Rules of Civil Procedure could read the record
in this case – beginning with the plaintiffs' complaint and CCBCC's answer and
continuing to the district court's final order granting CCBCC summary judgment –
they would roll over in their graves. In fashioning the Rules, they assumed that
complaints would be drafted as clearly and definitively as possible, so that the
defendant could understand the cause(s) of action the plaintiff was asserting and
frame a responsive pleading, and the district court, having a clear and definitive
response before it, could recognize the parties' claims and defenses, identify the
issues of fact to be litigated, and proceed to a just result. The framers also
assumed that the lawyers appearing before the district courts would adhere to the
standards of professional responsibility and conduct, and that, as officers of the
court, would be aware that the federal courts constitute a scarce resource for
resolving disputes and that their failure to adhere to these standards would likely
yield countless untoward, and totally unacceptable, consequences.

This case confounds these assumptions. The complaint is a model
"shotgun" pleading of the sort this court has been roundly, repeatedly, and
consistently condemning for years, long before this lawsuit was filed.54 And the
defendant's answer is no better. Both pleadings were drafted by AV rated law
firms whose appearances in district courts of this circuit, and in this court, have
been ubiquitous.55 The steps counsel took in litigating their respective clients'
interests – the pleading strategies they employed – were not taken out of
ignorance; they were deliberate, calculated.

Plaintiffs' complaint, first amended complaint, and second amended
complaint are nearly identical, each containing three counts. In part I.B, supra, we
quoted from Count I what plaintiffs were contending: race discrimination in "pay,
raises, benefits, ability to advance, and right to be free of racial discrimination,
harassment and intimidation, and other terms and conditions of employment,"56 all
in violation of Title VII. This all-encompassing discrimination gave the eight
named plaintiffs (and the unnamed members of their class) untold causes of
action, all bunched together in one count contrary to the requirements of Federal
Rules of Civil Procedure 10(b).57 With one exception – the "ability to advance,"
forth." Fed. R. Civ. P. 10(b) (emphasis added.). Plaintiffs' complaint failed to conform to these
instructions. The complaint contained in one count a host of claims based on discrete acts of
discrimination committed by CCBCC against different plaintiffs at different times. As we
explained in Fikes v. City of Daphne, 79 F.3d 1079, 1082-83 (11th Cir. 1996),
which became the foundation for plaintiffs' "promotion" claims – Count I failed
explicitly to link a particular plaintiff to a particular cause of action. Count II
incorporated the allegations of Count I and added nothing new except to allege
that "[t]he effect of the defendant's discrimination as outlined [in Count I] has
been to deprive the plaintiffs of the same right to make and enforce contracts as is
enjoyed by similarly-situated white persons in violation of 42 U.S.C. § 1981 and
1981(a)." Thus, as in Count I, there was nothing in Count II to indicate which
plaintiff possessed which cause(s) of action.58

No competent lawyer – whether skilled in Title VII litigation or not –
could compose an answer to these sweeping and multifaceted acts of
discrimination that would be in keeping with what the framers of the Rules
envisioned in fashioning Rule 8(b).60 Yet, CCBCC's attorneys framed one. They
used the same shotgun strategy plaintiffs had employed. Their answer contained
fourteen defenses. The first defense responded to the complaint paragraph by
paragraph, admitting or denying the allegations thereof. The second through the
fourteenth defenses were affirmative defenses, and except for the seventh defense,
consisted of only one sentence. These affirmative defenses did not respond to
specific causes of action, because the drafter of the answer could not identify the
specific causes of action each named plaintiff was purporting to allege.
Consequently, the affirmative defenses referred to none of these plaintiffs by
name.61

Faced with these pleadings, how the district court could have made heads or
tails out of plaintiffs' allegations, and which affirmative defenses applied to which
causes of action, is beyond us. It took several rounds of pleadings, namely
CCBCC's Rule 12(c) motions and the parties' memoranda (dealing with those
motions and responding to court orders requesting briefing on other points) for the
court even to begin the process of narrowing the issues. In the end, as our
preceding analysis of plaintiffs' arguments discloses, the court missed some
claims altogether.62 Plaintiffs could have brought this to the court's attention via a
motion to alter or amend judgment,63 but chose, instead, to stand pat and leave the
matter to us.64

B.

The unacceptable consequences of shotgun pleading are many. First, and
perhaps foremost, shotgun pleading inexorably broadens the scope of discovery,
much of which may be unnecessary.65 Who benefits from that? Certainly not the
defendant, especially if it compensates its counsel by the hour. Certainly not the
plaintiff – unless his lawyer is trying to attach some value to a frivolous claim. In
time, the defendant will ask: "when is all of this to end?" Unless the court has
intervened and required the attorneys to replead the case, unless the court has
definitively identified the parties' claims and defenses and has squeezed the case
down to its bare essentials, defense counsel will be unable to give the client an
accurate answer. Plaintiffs' counsel knows this, of course, and that the defendant
will want out of the case, to settle. So, the case settles, and the shotgun complaint
has performed its designed service. So has defense counsel's acceptance of the
shotgun complaint as an appropriate pleading. As we have observed,

Litigating a case framed by shotgun pleadings obviously harms one or
both of the parties. Why, then, would a lawyer engage in shotgun
pleading? Plaintiffs file shotgun complaints and include frivolous
claims to extort the settlement of a meritorious claim; worse yet, they
file shotgun complaints to extort the settlement of unmeritorious
claims . . . . Extortion cuts both ways. Depending on his financial
resources, a defendant may use a shotgun answer to obtain a
settlement that waters down a meritorious claim. In either situation,
the extorted settlement provides a financial benefit to the "prevailing"
party and a windfall in the form of fees for the "prevailing" lawyer.

Byrne v. Nezhat, 261 F.3d 1075, 1130 (11th Cir. 201) (footnotes omitted).

Second, in addition to delaying a just disposition of the case at the undue
expense of one or both of the parties, shotgun pleadings, if tolerated by the court,
lessen the time and resources the court has available to reach and dispose of the
cases and litigants waiting to be heard.66 This is especially harmful to those who
have no other forum for the vindication of their rights.

Third, shotgun pleadings wreak havoc on appellate court dockets. The case
at hand is Exhibit A. Due to the nebulous pleadings in this case and the district
court's failure to strip the case down and identify each claim and defense, we had
to undertake that task from scratch. The briefs and oral argument were of no use
until we scoured the record – including the memoranda the parties gave the district
court in support of or in opposition to CCBCC's motions for judgment on the
pleadings and, subsequently, for summary judgment – to determine whether what
the parties stated in their respective briefs was accurate.

The unvarnished truth is that this court puts no credence in briefs written
against a backdrop of a case disposed of on shotgun pleadings. We sift through
the record for anything that will corroborate a brief's representation; it is not until
that task is finished that we look to the briefs for assistance – namely, to determine
whether the appellant has preserved the issues its opening brief presents. In this
case, after searching the record, we were able to discard much of it as pure waste
and thus substantially reduce the length of this opinion. Had we not approached
the appeal in this manner, there is no telling how many mistakes we might have
made in identifying plaintiffs' claims, the district court's treatment of those claims,
and the issues plaintiffs preserved for appeal.

Fourth, the mischief shotgun pleadings causes undermines the public's
respect for the courts – the ability of the courts to process efficiently,
economically, and fairly the business placed before them.67 At an increasing rate,
civil litigants are avoiding the federal district courts; they go elsewhere, to other
fora, for the resolution of their disputes, especially complicated commercial
disputes.68 The district courts' civil caseloads reflect this. The contemporary
litigation culture has effectively reduced the federal court civil dockets,
nationwide.69 This is not surprising. The exponentially increasing transaction
costs the parties must bear in order to resolve their civil disputes in the federal
district courts is driving litigants away, especially those involved in complex
commercial matters. This has a negative effect on the development of the rule of
law in the federal courts. When issues that ought to be presented to the courts for
clarification, and to stabilize the rule of law, are removed to non-judicial fora for
resolution, the public bears the cost – in the form of more litigation and a judiciary
unable to handle it.

Fifth, in Title VII cases, shotgun pleadings undercut the purpose of
Congress's enactment of Title VII – to bring peace and equity to the workplace. It
requires no subtle analysis to conclude that the wrangling and pure bitterness these
pleadings engender does not foster good employer-employee relationships.

C.

What happened in this case was easily avoidable – by a straightforward
application of the Rules of Civil Procedure. First, defense counsel, faced with a
complaint purporting to combine in one count multiple claims of eight plaintiffs,
should have moved the court for a more definite statement pursuant to Federal
Rule of Civil Procedure 12(e).70 The court would have granted the motion –
"[w]here, as here, the plaintiff asserts multiple claims for relief, a more definite
statement, if properly drawn, will present each claim for relief in a separate count,
as required by Rule 10(b)." Anderson v. Dist. Bd. of Trs. of Cent. Fla. Cmty.
Coll., 77 F.3d 364, 366 (11th Cir. 1996). But counsel chose to reply in kind – by
fashioning affirmative defenses that failed to respond explicitly to the specific
claims plaintiffs were independently asserting. In light of defense counsel's
failure to request a repleader, "the court, acting sua sponte, should have struck the
plaintiff's complaint, and the defendants' answer, and instructed plaintiff's
counsel to file a more definite statement." Id. at 367. The necessity for doing so
should have become starkly apparent on reading the complaint.71

The need for intervention was necessary for another reason, apart from the
mess the shotgun pleadings were creating: plaintiffs' initial complaint, like its
successors, appeared to allege a class action. Where a complaint alleges that the
employer is engaging in a pattern or practice of race discrimination against a class
of similarly situated employees and seeks declaratory and injunctive relief, the
court must determine without delay whether plaintiffs are bringing a Rule 23(b)
class action or not.72 The rights of the putative unnamed class members may be
affected – one way or another. In this case, had the court inquired of plaintiffs'
counsel, and counsel stated that plaintiffs were not bringing a class action, the
court would have entered an order stating explicitly that the case was not being
prosecuted as a class action.73 This would have informed the putative class
members that if they had any claims against CCBCC, they would have to pursue
them on their own.

D.

Title VII authorizes the court to award "a reasonable attorney's fee" to the
prevailing party in a Title VII case.74 This authority extends to the court of
appeals. Here, CCBCC is the prevailing party with the exception of two of
Jackson's claims, which are being remanded for further proceedings. As to those
claims, Jackson is the prevailing party. Given the manner in which both sides
chose to litigate this case in the district court, a strategy that complicated our task
to no end, we will deny a request for attorney's fees from either side.

* * *

http://www.ca11.uscourts.gov/opinions/ops/200512988.pdf

For the reasons we have stated, the judgment of the district court is affirmed
as to all claims except the two Terry Jackson claims we remand for further
proceedings.
AFFIRMED, in part; VACATED, in part; and REMANDED.

Unknown

Unknown

None