Trial Practice and Procedure - Philip W. Savrin

• Publication year: 2001

Trial Practice and Procedureby Philip W. Savrin^*

I. Introduction

This Article surveys the year 2000 decisions of the Eleventh Circuit Court of Appeals that have a significant impact on issues relating to trial practice and procedure.

II. Constitutional Torts

A. Title VII and Preemption

In Dickerson v. Alachua County Commission,¹ the court considered the first impression issue of whether a Title VII claim preempts a 42 U.S.C. Sec. 1985(3) claim when the same conduct underlies both causes of action. The case was brought by an African-American corrections officer who was demoted after an investigation into an inmate's escape. The complaint had been filed in state court and alleged a civil rights conspiracy under Section 1985(3). After the case was removed to federal court by county-defendants, plaintiff was allowed to amend his complaint to include a claim of racial discrimination under Title VII and state law, among other bases for relief.²

The case proceeded to trial by jury, which returned a special verdict for plaintiff on his Section 1985(3) conspiracy claim. The court denied defense's motion to dismiss the claim as a matter of law. The county appealed on the basis that plaintiff's Title VII claim preempted a Section 1985(3) conspiracy claim for employment discrimination.³

On appeal the Eleventh Circuit noted that the viability of a Section 1985(3) claim in the face of a Title VII claim was a matter of first impression for the circuit.⁴ For guidance in resolving the issue, the court looked to its previous decision in Johnson v. City of Fort Lauderdale⁵ that considered a challenge to Section 1983 claims arising from the same facts as claims arising under 42 U.S.C. Sec. 1981 and Title VII.⁶ In Johnson defendants argued that Title VII's comprehensive remedial scheme provided the exclusive remedy for the workplace discrimination alleged by plaintiff.⁷ Defendants in Johnson also argued "that if [Section] 1983 could be used to sue for employment discrimination, Title VII's procedural safeguards could be undermined."⁸ After analyzing the structure and legislative history of Title VII and finding that it reflected Congress' intent to retain Section 1983 as a parallel remedy for unconstitutional employment discrimination, the court in Johnson rejected defendant's arguments, concluding that the Civil Rights Act of 1991⁹ did not render Title VII and Section 1981 the exclusive remedies for public sector employment discrimination.¹⁰

Similarly, the court reasoned in Dickerson that Title VII did not preempt a constitutional cause of action under Section 1985(3).¹¹ However, this was a pyrrhic victory for plaintiff because the court vacated the judgment on the separate basis that Section 1985(3) relief is barred by an intracorporate conspiracy doctrine.¹² In sum, the doctrine does not allow a county to conspire with itself to deny constitutional rights.¹³ Accordingly, plaintiff was not entitled to the relief awarded under Section 1985(3).¹⁴

B. Failure to Plead Companion Claim

In Thigpen v. Bibb County, Georgia Sheriff's Department,¹⁵ the Eleventh Circuit again addressed the interaction between Title VII and Section 1983, this time answering another question of first impression: Whether Section 1983 claims are procedurally barred by a failure to plead companion Title VII claims.¹⁶

Plaintiffs in Thigpen were white Bibb county police officers who brought a Section 1983 action against the sheriff's department, asserting that an employment promotion policy, adopted as part of the settlement of a prior lawsuit and requiring the department to award fifty percent of all annual promotions to black officers, violated their rights to equal protection. Plaintiffs did not raise Title VII claims in their suit. The district court granted summary judgment in favor of defendants and denied plaintiffs' motion for partial summary judgment on liability.¹⁷

On appeal the Eleventh Circuit found that plaintiffs' lack of property interest in the relevant promotions did not preclude their equal protection challenge.¹⁸ Distinguishing between due process claims, in which a property interest is required, and equal protection claims, in which it is not, pursuant to Wu v. Thomas,¹⁹ the court held that plaintiffs alleged proper equal protection claims.²⁰

The court then addressed the relationship between Section 1983 equal protection claims and Title VII employment discrimination claims.²¹ The court looked first to the Second Circuit, the only circuit to address the question of whether a Section 1983 claim is viable only if brought with its companion Title VII claim.²² The court used reasoning from its own decision in Annis v. County of Westchester²³ and concluded that, because Section 1983 claims are not preempted by Title VII, they need not be brought with Title VII claims.²⁴ Because defendants offered no authority to support the position that plaintiffs are obligated to bring all available causes of action, the Eleventh Circuit followed the Second Circuit, holding that "a [Section] 1983 claim predicated on the violation of a right guaranteed by the Constitution . . . can be pleaded exclusive of a Title VII claim."²⁵

The court further held that the burden-shifting analysis used in employment discrimination cases was not applicable to the officers' equal protection claims²⁶ and that the denied promotions underlying the equal protection claims were not a "continuing violation" for statute of limitation purposes.²⁷

III. Removal Jurisdiction

A. Removal and Evidentiary Limitations

In Sierminski v. Transouth Financial Corp.,²⁸ the Eleventh Circuit faced another issue of first impression: Whether the district court's jurisdictional review is limited to the evidence provided at the time the removal is filed or the record can be thereafter supplemented with additional information.²⁹ Factually, plaintiff sued in state court under Florida's Whistle Blower's Act³⁰ after being discharged from employment by defendant.³¹ After defendant removed the case to federal court, plaintiff unsuccessfully moved to remand to state court. Thereafter, summary judgment was entered in favor of defendant. On appeal plaintiff raised the issue of the denial of her motion to remand.³²

The basis for plaintiff's remand motion was that the state court complaint sought less than the jurisdictional amount in controversy for diversity purposes and that defendant had not shown the amount in controversy to meet the statutory minimum.³³ Before the district court ruled on the motion to remand, defendant filed a declaration containing detailed calculations indicating that damages exceeded the statutory minimum. Additionally, defendant sent plaintiff a request to admit that her claim was not worth more than the statutory minimum and argued the motion to remand should be denied because plaintiff had failed to respond to the request. The district court denied the motion for remand based on defendant's calculations and plaintiff's admissions resulting from the failure to respond to the request to admit, as provided by Rule 36 of the Federal Rules of Civil Procedure.³⁴

In analyzing whether the district court properly relied on evidence submitted after removal was filed, the Eleventh Circuit noted that it had no binding precedent.³⁵ The court instead looked to the flexible approaches applied by the Fifth and Seventh Circuits that permit such a procedure.³⁶ The Fifth Circuit, in Allen v. R & H Oil Co.,³⁷ allowed the parties in a summary judgment proceeding, to present evidence to determine the amount in controversy if the amount was not apparent in the complaint.³⁸ In Harmon v. OKI Systems,³⁹ the Seventh Circuit adopted a similar approach, stating that "the test should simply be whether the evidence sheds light on the situation which existed when the case was removed."⁴⁰

After assessing the various considerations, the Eleventh Circuit noted that it is preferable for a defendant to include all relevant evidence at the time of removal.⁴¹ However, the court reasoned that "there is no good reason to keep a district court from eliciting or reviewing evidence outside the removal petition."⁴² Accordingly, the district court's denial of the remand motion was affirmed.⁴³

B. Removal and Workers' Compensation

The Eleventh Circuit addressed another issue involving removal, this time in the context of Workers' Compensation, in the case of Reed v. Heil Co.⁴⁴ Plaintiff in Reed injured his back while working for defendant and thereafter performed light duty work for two years until his termination by the company.⁴⁵ Following his termination, plaintiff brought suit in Alabama state court alleging that his termination violated: (1) the Americans with Disabilities Act ("ADA");⁴⁶ (2) anAlabama statute barring retaliation against employees who file Workers' Compensation claims;⁴⁷ and (3) constituted a breach of contract. Defendant removed the action to federal court where summary judgment was granted on its behalf on all claims.⁴⁸

In his appeal plaintiff alleged that the district court lacked subject matter jurisdiction under 28 U.S.C. Sec. 1445(c), which bars the removal of...