Youngblood v. George C. Wallace State Community College et al

Filing 136

OPINION AND ORDER: it is ORDERED that the 69 motion for summary judgment filed by dfts George C. Wallace State Community College and Linda C. Young is denied. Signed by Honorable Judge Myron H. Thompson on 7/1/2014. (Attachments: # 1 Civil Appeals Checklist)(wcl, )

IN THE DISTRICT COURT OF THE UNITED STATES FOR THE
MIDDLE DISTRICT OF ALABAMA, SOUTHERN DIVISION

LUCILLE YOUNGBLOOD,
Plaintiff,
v.
GEORGE C. WALLACE STATE
COMMUNITY COLLEGE and
LINDA C. YOUNG,
Defendants.

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CIVIL ACTION NO.
1:13cv33-MHT
(WO)

OPINION AND ORDER
Plaintiff

Lucille

Youngblood

brought

this

action

against defendants George C. Wallace Community College
(“WCC”) in Dothan, Alabama and college president Linda C.
Young.1

Youngblood asserts violations of the Equal Pay

Act of 1963, as amended (29 U.S.C. § 206(d)), Title VII
of the Civil Rights Act of 1964, as amended (42 U.S.C. §§
1981a & 2000e to 2000e–17), the Equal Protection Clause

1. Youngblood refers to the community college as
George C. Wallace State Community College. However, the
community college, which is located in Dothan Alabama,
refers to itself as George C. Wallace Community College
or WCC.

of the Fourteenth Amendment (as enforced by 42 U.S.C.
§ 1983), and 42 U.S.C. § 1981 (as enforced by 42 U.S.C.
§ 1983).
U.S.C.

Subject-matter jurisdiction is proper under 28

§§

1331

(federal

question)

and

1343

(civil

rights), as well as 42 U.S.C. § 2000e–5(f)(3) (Title VII)
and 29 U.S.C. § 216(b) (Equal Pay Act).

The cause is

before the court on the defendants’ motion for summary
judgment.

For the reasons that follow, the motion will

be denied.

I. SUMMARY-JUDGMENT STANDARD
“A party may move for summary judgment, identifying
each claim or defense--or the part of each claim or
defense--on which summary judgment is sought.

The court

shall grant summary judgment if the movant shows that
there is no genuine dispute as to any material fact and
the movant is entitled to judgment as a matter of law.”
Fed.

R.

Civ.

P.

56(a).

The

court

must

view

the

admissible evidence in the light most favorable to the

2

non-moving party and draw all reasonable inferences in
favor of that party.

Matsushita Elec. Indus. Co. Ltd. v.

Zenith Radio Corp., 475 U.S. 574, 587 (1986).

II. BACKGROUND
Youngblood alleges that WCC paid her less than she
deserved,

and

less

than

other

comparable

employees

earned, all because she is a black woman.
Youngblood worked for colleges in Alabama’s two-year
college system for approximately 25 years, from when she
was a student at WCC in 1986 through her retirement in
2011.

For the first ten years, until 1996, she was

employed at the Alabama Aviation and Technical College.
In

late

1997,

the

aviation

college

and

WCC

merged.

Youngblood was reassigned to the WCC print shop in early
1998.

The two colleges subsequently separated in 2003,

but Youngblood remained at WCC until her retirement in
2011.

Young became president of the community college in

1999, not long after Youngblood transferred there.

3

Alabama’s two-year college system used, and continues
to use, a system of salary schedules for its employees.
Much of this case concerns Schedule E, which contains
various ‘levels,’ such’ as ‘E4, 05’ or ‘E5, 07’.

An

employee’s

by

level

reference

to

the

is

supposed

to

employee’s

be

job

determined

description

and

responsibilities. In addition, each employee is assigned
a ‘step,’ from 0 to 27, depending on experience.

The

employee’s salary is a product of her salary schedule and
step.
After

her

arrival

at

WCC,

Youngblood’s

salary

schedule was evaluated by Dr. Keith Ward, an outside jobclassification consultant.
E5,

07

was

appropriate

He concluded that schedule

for

Youngblood’s

job.

Ward

reviewed her job at least four times altogether, and
always reached the same conclusion.
In 2000, Youngblood’s supervisor in the print shop,
John Herring, retired.

The administration approached

Youngblood about taking over the supervisor position, but

4

at that time she declined.

Later, when the college

posted a formal job announcement, she had a change of
heart and applied.
filled.

The supervisor position was not

Instead, Dean Mark Shope, who had supervised

Herring, took over direct supervision of the print shop.
Shortly thereafter, a white male employee named Wade
Glover was reassigned to the print shop at the request of
Dean Shope and Dean Lynn Bell and with President Young’s
approval.

Glover had previously been employed as a

supervisor of grounds and maintenance, on the higher E4,
05 salary schedule.

Shope and Bell noted that, upon

Glover’s transfer to the print shop, “There will be no
salary adjustment.”

Memorandum (Doc. No. 78-2) at 36.

The documentary evidence does not reflect the reason for
this transfer, but the defendants have offered testimony
that it was on account of Glover’s health.

According to

testimony from WCC personnel, the maintenance of Glover’s
salary was pursuant to the community colleges’s policy of
not reducing salaries as a result of transfers.

5

Glover and Youngblood both worked in the print shop
from

October

2000,

November 1, 2011.

until

Youngblood’s

retirement

on

Glover retired shortly after that.

Before Glover’s arrival, various documents had referred
to

Youngblood

“Duplicating

by

different

Clerk,”

job

titles,

“Duplications

including

Clerk,”

and

“Duplications Technician.” See, e.g., Contract (Doc. No.
81-8) at 14; Memorandum (Doc. No. 70-1) at 112.

In 2001,

Shope indicated that the proper title for both Youngblood
and

Glover

was

“Printing/Duplication

Memorandum (Doc. No. 77-5) at 2.

Technician.”

They both maintained

that title until their respective retirements.

Neither

was in the position of supervising the other.
Glover maintained his higher E4, 05 salary schedule
associated with his previous position as a supervisor of
grounds

and

maintenance

throughout

this

time,

while

Youngblood remained at the E5, 07 schedule assigned to
the Printing/Duplication Technician position.

6

President

Young signed the employment contracts for both Youngblood
and Glover, containing their different salary schedules.
Shortly after Youngblood’s notice that she would be
retiring in late 2011, WCC prepared a job announcement
for the position of “Duplications Technician.”
Announcement (Doc. No. 79-9) at 2.

2011

When no allegedly

qualified individuals applied, the college prepared a new
announcement, again for a “Duplications Technician” but
this time with less demanding educational qualifications.
2012

Announcement

announcements

set

(Doc.
the

No.

79-10)

position’s

at

salary

2.
at

Both
E4,

05.

Eventually, Kimberly Johnson, a white woman, was hired
for the new position.

Since Glover retired, Johnson has

been working alone in the print shop.
Youngblood learned of Glover’s higher pay in October
2011, after she had announced her retirement.

Around the

same time she also became aware of the higher salary
schedule

for

the

position

preparing to retire.

announced

when

she

was

Thereafter, Youngblood filed a

7

charge with the Equal Employment Opportunity Commission
(“EEOC”) and the instant lawsuit.

III. DISCUSSION
Youngblood

asserts

the

following

claims:

sex

discrimination in pay by WCC in violation the Equal Pay
Act; race and sex discrimination in pay by the community
college

in

violation

of

Title

VII;

race

and

sex

discrimination in pay by Young in her individual capacity
in violation of the Equal Protection Clause; and race
discrimination in pay by Young in her individual capacity
in violation of § 1981.2

The defendants move for summary

2. Youngblood had named a number of other defendants
as well, but the parties stipulated to their dismissal.
See Stipulation (Doc. No. 86); Judgment (Doc. No. 87);
Order (Doc. No. 103).
The dismissed defendants are:
Chancellor Mark A. Heinrich, former Chancellor Frieda
Hill, the Alabama Department of Postsecondary Education,
the Alabama State Board of Education, Governor Robert
Bentley, Randy McKinney, Gary Warren, and State Board of
Education
members
Charles
Elliott,
Betty
Peters,
Stephanie W. Bell, Yvette Richardson, Ella B. Bell,
Jeffery Newman, Tracy Roberts, and Mary Scott Hunter.
Youngblood also stipulated to the dismissal of Young in
her official capacity.
See Order (Doc. No. 104).
(continued...)
8

judgment on a variety of grounds.3

The court will group

and address those arguments by the claims to which they
apply.

A.

Equal Pay Act

The Equal Pay Act, a portion of the Fair Labor
Standards Act, prohibits sex discrimination in the form
of unequal pay “for equal work on jobs the performance of
which requires equal skill, effort, and responsibility,
and

which

conditions.”
prima-facie

are

performed

under

29 U.S.C. § 206(d)(1).
case,

“a

plaintiff

must

similar

working

To establish a
show

‘that

an

employer pays different wages to employees of opposite

2. (...continued)
Youngblood’s retaliation claims were previously dismissed
by stipulation of the parties. See Stipulation (Doc. No.
86); Judgment (Doc. No. 87).
Finally, Youngblood
stipulated that she is not alleging any claim of a
hostile-work environment or constructive discharge. See
Order (Doc. No. 104).
3. In their briefing, the defendants also make
arguments for summary judgment regarding the dismissed
claims and defendants; those arguments are now moot.
9

sexes’” for such equal work.

Schwartz v. Florida Bd. of

Regents, 807 F.2d 901, 907 (11th Cir. 1987) (quoting
Corning

Glass

(1974)).

Works

v.

Brennan,

417

U.S.

188,

195

“Once plaintiff has established a prima facie

case, the burden shifts to the employer to prove that the
difference

in

pay

is

justified

by

one

of

the

four

exceptions to the Equal Pay Act: (i) a seniority system;
(ii)

a

merit

system;

(iii)

a

system

which

measures

earnings by quantity or quality of production; or (iv) a
differential
Schwartz,

807

based

on

any

factor

other

F.2d

at

907

(internal

than

sex.”

quotation

marks

omitted); see also 29 U.S.C. § 206(d)(1).

To carry their

burden, “[d]efendants must show that the factor of sex
provided no basis for the wage differential,” Schwartz,
807 F.2d at 907, and this “burden is a heavy one.”
Mulhall v. Advance Sec., Inc., 19 F.3d 586, 590 (11th
Cir.

1994).

Because

the

four

statutory

exceptions

“constitute affirmative defenses,” if a defendant proves

10

one of them he “is absolved of liability as a matter of
law.”

Id.

The community college has not argued that Youngblood
failed to make a prima-facie case, and the court finds
that she has made such a showing.

It is undisputed that

Glover, a male employee of the community college, earned
more

than

Youngblood,

a

female

employee,

during

the

entire eleven-year period that they both worked in the
print shop.

Their jobs were somewhat different: Glover

was primarily responsible for offset printing, which
involves

manual

printing

on

a

printing

press,

while

Youngblood’s responsibilities focused on printing and
binding

of

electronic
she

testimony,

materials.
had

also

responsibilities

including

negotiations

vendors,

a

with

According

range

of

computer
accounting

to

her

additional
programing,

and

budgeting,

troubleshooting, and even offset printing.

“The jobs

held by the employees of opposite sexes need not be
identical;

rather,

they

need

11

only

be

substantially

equal.”

Miranda v. B & B Cash Grocery Store, Inc., 975

F.2d 1518, 1533 (11th Cir. 1992).
evidence

considered

in

the

In this case, with the

light

most

favorable

to

Youngblood, it is clear that her job was substantially
equal

to

Glover’s,

and

to

the

extent

they

differed

Youngblood had more responsibilities.
The community college’s principal argument regarding
this claim goes instead to the affirmative defense.

It

argues that Glover was kept at his original, higher
salary after transferring to the print shop based not on
his sex but on the community college’s policy of not
lowering employees’ salaries upon transfer.

It goes on

to argue that the decision to transfer him was, in turn,
also based not on sex, but on concerns that his health
was being harmed by his outside grounds and maintenance
work.

According

to

the

community

college,

this

justification (namely that it maintained Glover’s salary
pursuant to its policy after transferring him for health
reasons) was “a differential based on any other factor

12

other

than

sex,”

29

U.S.C.

§

206(d)(1)(iv),

and

specifically was a legitimate example of the practice of
‘red circling.’
“The term ‘red circle’ describes ‘certain unusual,
higher than normal, wage rates which are maintained for
many reasons.’”

Mulhall, 19 F.3d at 595 (quoting Gosa v.

Bryce Hospital, 780 F.2d 917, 918 (11th Cir. 1986)).

The

legislative history of the Equal Pay Act indicates that
“Congress intended to include this practice as a factor
other than sex that explains a wage differential and
constitutes an affirmative defense.”
595.

Mulhall, 19 F.3d at

“Numerous courts, including [the Eleventh Circuit

Court of Appeals], acknowledge red-circling where current
employees are transferred to lower paying positions but
retain their higher pay.”

Id.

Youngblood argues that the red-circle principle does
not apply to this case because Glover was transferred on
a permanent, rather than temporary, basis.

In support,

she points to testimony from her expert witness, Dr.

13

James Buford, that the community college misapplied the
red-circle principle by allowing the wage difference to
continue perpetually.

See Buford Dep. (Doc. No. 75-3) at

19; Buford Notes (Doc. No. 82-12) at 2 (“the red circle
principle allows for a time frame for employers to remove
the pay disparity...[and] it is not a justification for
perpetuating
years”).

a

disparity

that

has

existed

over

13

She also cites testimony by the defendants’

expert witness, Dr. Toni Locklear, in which she agreed
that “ideally the red circle application is intended to
be resolved at some point in time.”

Locklear Dep. (Doc.

No. 76-1) at 24.
However, the proper question here is not what the
term ‘red circle’ means to experts on employment and
human

resources,

reasonable

in

fundamentally
Congress

nor
the

a

intended

what

industry.

matter
to

red-circle

of

include

Rather,

statutory
red

practices
this

are
is

construction.

circling

under

the

fourth affirmative defense to the Equal Pay Act, as a

14

factor other than sex, see Gosa, 780 F.2d at 918, and so
the

question

encompass.
by

is

what

Congress

meant

that

term

to

That is not a question of fact to be resolved

reference

to

experts

on

current

practice

but

a

question of law to be decided by the court.4
The text of the statute itself is silent on the
question

of

whether

red

circling

must

be

temporary;

indeed, it does not mention red circling at all.

The

legislative history contains the following discussion of
the red-circle principle:
“‘[The factor-other-than-sex exception]
recognizes
certain
special
circumstances, such as “red circle
rates.” This term is borrowed from War
4. This is not to suggest that no expert evidence
would be helpful in resolving this issue. For example,
the legislative history suggests that the term ‘red
circle’ was borrowed from the War Labor Board, see Glenn
v. Gen. Motors Corp., 841 F.2d 1567, 1571 (11th Cir.
1988), which was active during World Wars I and II.
See Catherine Lerum, Equal Pay for Women Can Become A
Reality: A Proposal for Enactment of the Paycheck
Fairness Act, 34 N. Ill. U. L. Rev. 221, 222 (2013).
Certainly historical evidence about the War Labor Board’s
interpretation of red circling would be helpful to
clarify what Congress understood the term to include when
it passed the Equal Pay Act.
15

Labor Board parlance and describes
certain unusual, higher than normal wage
rates which are maintained for many
valid reasons. For instance, it is not
uncommon for an employer who must reduce
help in a skilled job to transfer
employees to other less demanding jobs
but to continue to pay them a premium
rate in order to have them available
when they are again needed for their
former jobs.’”
Glenn v. Gen. Motors Corp., 841 F.2d 1567, 1571 (11th
Cir. 1988) (quoting H.R.Rep. No. 309, 88th Cong., 1st
Sess. 3, reprinted in 1963 U.S. Code Cong. & Admin. News
687, 689).
involve

The single example cited in this passage does

temporary

transfer

of

personnel,

somewhat

supporting Youngblood’s interpretation.
However,

the

EEOC’s

interpretive

regulation

addressing red-circle rates suggests that Youngblood’s
argument,
transfers,

that
is

those
flawed.

rates

apply

See

29

to

only

C.F.R.

§

temporary
1620.26.

“[A]dministrative interpretations by the EEOC, as the
enforcing

agency,

are

entitled

to

great

deference.”

Pettway v. Am. Cast Iron Pipe Co., 494 F.2d 211, 254

16

n.127 (5th Cir. 1974) (citing Griggs v. Duke Power Co.,
401 U.S. 424 (1971)); see also United States v. Mead
Corp., 533 U.S. 218, 229 (2001) (generally no deference
of the type set forth in Chevron, U.S.A., Inc. v. Natural
Res. Def. Council, Inc., 467 U.S. 837 (1984), without
delegated authority to promulgate binding regulations);
Morgado v. Birmingham-Jefferson Cnty. Civil Def. Corps,
706

F.2d

1184,

congressional

1189

n.1

authorization

(11th
to

Cir.

1983)

promulgate

(no

binding

regulations under the Equal Pay Act).5
As the community college notes, § 1620.26 actually
“describe[s] two different examples of red-circling.”
Arthur v. Coll. of St. Benedict, 174 F. Supp. 2d 968, 976
n.7 (D. Minn. 2001) (Rosenbaum, J.).
which

Youngblood

principally

relies,

Subsection (b), on
describes

the

circumstances under which, “[f]or a variety of reasons an
employer may require an employee, for a short period, to
5. The Eleventh Circuit has adopted as precedent all
decisions of the former Fifth Circuit rendered prior to
October 1, 1981. Bonner v. City of Prichard, 661 F.2d
1206, 1207 (11th Cir. 1981)(en banc).
17

perform the work of a job classification other than the
employee’s
§

regular

1620.26(b)

reassignments,

classification.”

(emphasis
such

as

added).

the

29
Such

example

C.F.R.

temporary

discussed

in

the

legislative history, may be necessary for a variety of
reasons, and unequal wages may be maintained during the
short period of time.

However, the regulation specifies

that “failure to pay the higher rate to a reassigned
employee after it becomes known that the reassignment
will not be of a temporary nature would raise a question
whether sex rather than the temporary nature of the
assignment is the real basis for the wage differential,”
and “[g]enerally, failure to pay the higher rate to an
employee reassigned for a period longer than one month
will raise questions as to whether the reassignment was
in fact intended to be temporary.”

Id.

It is clear from

the record that Glover’s transfer would not qualify as
temporary.

18

However, subsection (a) of the same regulation is
quite different.

After giving a general definition of

red circling, the regulation notes that, “An example of
bona fide use of a ‘red circle’ rate might arise in a
situation

where

a

company

wishes

to

transfer

a

long-service employee, who can no longer perform his or
her regular job because of ill health, to different work
which

is

now

gender-employees.”

being

performed

by

29 C.F.R. § 1620.26(a).

opposite
“Under such

circumstances, maintaining an employee’s established wage
rate, despite a reassignment to a less demanding job, is
a valid reason for the differential even though other
employees performing the less demanding work would be
paid at a lower rate, since the differential is based on
a factor other than sex.”

Id.

Obviously, if the higher-

paid employee “can no longer perform” his prior job due
to

health

concerns,

id.,

then

this

might

not

temporary transfer but, rather, a permanent one.

19

be

a

Furthermore, the history of the regulation indicates
that the EEOC specifically rejected an interpretation
that

would

limit

red

circling

to

temporary

changes.

Section 1620.15 of the 1981 proposed regulation provided
for only temporary red circling:
“(b)
The
term
‘red
circle’
rate
describes a higher than normal rate
given to an employee for exceptional
reasons. A red circle rate cannot be
used for the purpose of maintaining
permanent wage differentials for equal
work. A red circle rate is permissible
as a factor other than sex in such cases
as, for example, temporary reassignment
for ill health.”
The Equal Pay Act; Interpretations, 46 FR 43848-02, 43852
(emphasis added).

However, during notice and comment

“[s]everal commentors objected to subsection (b) of the
proposed interpretation ... on the ground that it ...
only allow[ed] red circle rates on a temporary basis.”
The

Equal

29819.

Pay

Act;

Interpretations,

51

FR

29816-01,

The Commission concluded that “the language of

subsection (b) was unduly rigid” and returned to the
language of the prior regulations, which were found at 29
20

CFR §§ 800.146 and 800.147.
EEOC

rejected

as

“unduly

Id.
rigid”

circling must be temporary.

In other words, the
the

idea

that

red

Id.

WCC argues that Glover was transferred for just the
reason discussed in 29 C.F.R. § 1620.26(a): because his
health

prevented

maintenance

any

him
more.

from

working

However,

on

with

grounds
the

and

evidence

considered in the light most favorable to Youngblood,
there is a genuine dispute about whether Glover’s health
was the reason for his transfer.

The community college

has offered testimony that this was indeed the reason.
See, e.g.,

Young Dep. (Doc. No. 75-2) at 137 (Glover

“was having trouble dealing with the elements and the
heat and the cold”); Wilkins Dep. (Doc. No. 70-4) at 5
(“Dean Lynn Bell had been noticing that Mr. Glover was
having some--some issues dealing with the outside work in
terms of heat. ... Mr. Glover just was not handling the
physical requirements of the position as well as he had

21

been in the past.”).6 But the community college has cited
no contemporaneous documents reflecting that this was the
reason for the transfer.

See Memorandum (Doc. No. 78-2)

at 36 (requesting and approving Glover’s transfer, with
no reason given); see also Bell Aff. (Doc. No. 70-4) at
52, ¶ 3 (discussing Glover’s transfer without reference
to health problems).
Also,

other

evidence

in

the

record

severely

undermines the community college’s argument that health
was the reason for this transfer.

Youngblood testified

that she never saw Glover struggle to work in the heat

6. Although Youngblood made no such objection, this
testimony from Ashli Wilkins, designated to testify on
behalf of the community college pursuant to Fed. R. Civ.
P. 30(b)(6), may be subject to objection for lack of
personal knowledge and hearsay.
See, e.g., Sara Lee
Corp. v. Kraft Foods Inc., 276 F.R.D. 500, 503 (N.D. Ill.
2011)(discussing dangers of 30(b)(6) testimony and noting
that a “corporate representative may not repeat ‘rank
hearsay’”) (quoting Deutsche Shell Tanker Gesellschaft
mbH v. Placid Refining Co., 993 F.2d 466, 473 n. 29 (5th
Cir. 1993)).
Because the court determines there is
genuine dispute on this issue in any event, the court
need not resolve the admissibility of this evidence at
this time.
22

while he was on grounds and maintenance, and indeed she
had “never seen anybody mow as fast as he mows, so he
didn’t act like he had a bit of [a] problem.”
Dep.

(Doc.

No.

75-1)

at

43.

And

Youngblood

Glover

himself

categorically denied any health problems limiting his
ability to remain on grounds and maintenance:
“Q: Did they tell you any reason why you
were being transferred other than they
needed somebody in the Print Shop?
“A: No, ma’am.
“Q:
Did
you
have
any
performing
your
duties
maintenance department?

difficulty
in
the

“A: No, ma’am.
“Q: Were you having any respiratory or
any other problems?
“A: No, ma’am.
“Q: Did you have any problems as a
result of environmental issues?
“A: No, ma’am.”
Glover Dep. (Doc No. 76-3) at 7.

A jury could easily

conclude that Glover had no health problems and that,

23

therefore,

the

real

reason

for

his

transfer

lies

elsewhere.7
The college also alleges that it had a policy of
never reducing an individual’s salary when he or she was
transferred, and it argues that such a policy, even
without the health rationale, qualifies as a reason other
than sex sufficient for the affirmative defense under the
Equal Pay Act.
This argument is foreclosed by binding precedent.
The Eleventh Circuit has “consistently held that ‘prior
salary alone cannot justify pay disparity’ under the
[Equal Pay Act].”

Irby v. Bittick, 44 F.3d 949, 955

(11th Cir. 1995) (quoting Glenn v. Gen. Motors Corp., 841

7. WCC argues that Youngblood’s and Glover’s
testimony on this point is not relevant because the
question is whether the community college believed Glover
was having health issues.
However, Youngblood’s and
Glover’s consistent testimony that Glover had no
problems,
combined
with
the
total
lack
of
any
documentation that this was the reason for the transfer,
is sufficient to permit a jury to discredit the community
college’s contentions about what it and its personnel
believed at the time. Thus there is a genuine dispute of
material fact on this issue.
24

F.2d 1567, 1571 & n.9 (11th Cir. 1988)).
instructive.

In

that

case,

GM

claimed

Glenn is
to

have

“a

longstanding, unwritten, corporate-wide policy against
requiring

an

transferring

employee
to

to

salaried

take

a

cut

positions”

Glenn, 841 F.2d at 1570.

positions.

in

pay

from

when

hourly

As a result, the

female plaintiffs in that case were paid less than their
male comparators, who had transferred from higher-paying
hourly

jobs

rejected

this

in

the

policy

company.
as

The

Eleventh

insufficient

to

Circuit

establish

factor other than sex for the affirmative defense.

a
It

reviewed the legislative history of the Equal Pay Act,
finding that it “indicates that the ‘factor other than
sex’ exception applies when the disparity results from
unique

characteristics

of

the

same

job;

from

an

individual’s experience, training, or ability; or from
special

exigent

business.”

circumstances

connected

Id. at 1571 (emphasis added).

with

the

Thus, in order

to afford a defense under the Equal Pay Act, red circling

25

must be done based on the particular circumstances of the
individual involved, not a blanket policy of maintaining
salaries.

“[P]rior

disparity.”

salary

alone

cannot

justify

pay

Id.

Other courts have disagreed with this conclusion.
See, e.g., Wernsing v. Dep't of Human Servs., State of
Illinois, 427 F.3d 466, 468 (7th Cir. 2005); see also
Taylor v. White, 321 F.3d 710, 720 (8th Cir. 2003)
(declining to follow Glenn’s “bright line prohibition
against

reliance

on

prior

salary

except

in

limited,

exigent circumstances”).
But, besides the fact that Glenn is binding in this
circuit, this court is of the opinion that it is also
correct.

“It is well settled that exemptions from the

Fair Labor Standards Act are to be narrowly construed,”
Mitchell v. Kentucky Fin. Co., 359 U.S. 290, 295 (1959),
and the community college’s alleged policy is difficult
to square with the EEOC regulation, which is entitled to
“great deference.”

Pettway, 494 F.2d at 254 n.127.

26

That

regulation goes into detail to establish what temporary
transfers can qualify for red circling, and specifically
provides that “a period longer than one month will raise
questions as to whether the reassignment was in fact
intended to be temporary.”

29 C.F.R. § 1620.26(b).

Of

course, as discussed above, subsection (a) appears to
contemplate permanent red-circled transfers, but that
subsection also goes into detail about the circumstances
that

may

justify

red

circling,

suggesting

that

“a

long-service employee, who can no longer perform his or
her regular job because of ill health” may legitimately
be red circled.
subsections,

29 C.F.R. § 1620.26(b).

the

regulation

instances of red circling.

Id.

refers

to

In both

“bona

fide”

If a policy authorizing

red circling for all transfers can qualify as bona fide,
one has to wonder why the EEOC felt the need to go into
so much detail.

Indeed, if such a policy were enough, it

appears that the regulation could have simply said that
‘any salary may be red circled,’ so long as sex is not

27

the reason for the red circle and so long as the red
circle does not perpetuate prior sex discrimination.

Cf.

Corning Glass Works, 417 U.S. at 194 (“This ‘red circle’
rate served essentially to perpetuate the differential in
base wages between” men and women).

That the EEOC did

not do so, but rather went to great lengths to specify
examples of bona-fide red circling, strongly suggests
that there are some transfers for which red circling
would not provide an affirmative defense.

Or, in other

words, the EEOC regulation indicates that the community
college’s purported policy of never reducing salaries
upon transfer would not provide an affirmative defense.
“‘Red circling’ has yet to be defined in all of its
manifestations,” Timmer v. Michigan Dep’t of Commerce,
104 F.3d 833, 844 (6th Cir. 1997), and “the flexibility
of

the

red

circling

concept

has

been

preserved

in

anticipation of the need to reconcile legitimate business
necessities with the Act’s purpose.”
919.

Gosa, 780 F.2d at

All the same, it is clear to this court, based on

28

the legislative history, EEOC regulation, and cases that
have applied the red-circle principle, that red circling
is intended to permit continuing unequal pay only “in
extraordinary

instances

and

on

and

ad

hoc

basis.”

Marshall v. J.L. Hudson Co., 1979 WL 1850 (E.D. Mich.
1979) (Pratt, J.) at *8; see also Glenn, 841 F.2d at 1571
(“‘factor other than sex’ exception applies when the
disparity results from ... special exigent circumstances
connected with the business”) (emphasis added).
Refusing

to

allow

across-the-board

furthers the purposes of the Equal Pay Act.

red

circling

See Corning

Glass Works, 417 U.S. at 208 (“The Equal Pay Act is
broadly remedial, and it should be construed and applied
so as to fulfill the underlying purposes which Congress
sought to achieve.”).

Otherwise, employers could quite

easily escape the Act’s requirements by simply shuffling
employees around.

See id. (“To permit the company to

escape [its] obligation ... would frustrate, not serve,
Congress’ ends.”).

A blanket policy might well immunize

29

an employer from liability under the Act altogether so
long as the employer transferred employees with enough
frequency.

This would be very much contrary to the

structure of the Equal Pay Act, which imposes a “form of
strict liability” on employers for unequal payment of men
and

women,

subject

to

limited

affirmative

defenses.

Miranda v. B & B Cash Grocery Store, Inc., 975 F.2d 1518,
1533 (11th Cir. 1992).
However,

even

if

an

across-the-board

salary-

maintenance policy could serve as an affirmative defense,
in this case WCC has not established that the policy it
claims actually exists as a matter of undisputed fact.
President Young testified that “it has been the college’s
policy
Young

for
Dep.

everyone
(Doc.

No.

that

we

75-2)

don’t
at

34.

reduce
“When

salaries.”
they

are

reassigned or as a result of merger in any way or anyone
that is reassigned on a job, we don’t--we have never
reduced any salaries.”

Id.

Similarly, Dean Bell stated

that, “The College maintained Mr. Glover’s salary ...

30

pursuant

to

the

College’s

practice

not

to

lower

an

employee’s pay if he or she is transferred to a position
in a lower classification.”

Bell Aff. (Doc. No. 70-4) at

52, ¶ 3.
Youngblood

has

established

a

genuine

dispute

of

material fact as to the existence of such a policy.
First, WCC has pointed to no actual written policy to
that

effect.

See

Glenn,

841

F.2d

at

1570

n.8

(approvingly noting the district court’s conclusion that
“the absence of a writing in the context of other written
policies provides independent support for its finding
that the ‘policy’ was, in fact, an illegal practice”).
Nor has it cited any evidence of previous applications of
the

supposed

policy.

Second,

upon

discrediting

the

community college’s account of the reason for Glover’s
transfer, a reasonable jury could further infer that the
statements about the supposed policy of not lowering
salaries, unsupported by any documentary evidence, are
likewise not worthy of belief.

31

In other words, were a

jury to discredit the community

college’s account of

Glover’s alleged health problems, that itself could serve
as circumstantial evidence that the community college’s
alleged policy was also made up.
Third,

Youngblood

has

offered

additional

circumstantial evidence indicating that the difference
between her salary and Glover’s was not due to any
across-the-board
transfer.

policy

of

maintaining

salaries

upon

WCC twice advertised an open position in the

print shop shortly after Youngblood gave notice that she
planned to retire.
higher

E4,

throughout

05

similar

salary

his

announcements
to

description.

Both announcements provided for the
schedule

time

specified
those

in

the

duties

contained

which
print
that
in

Glover

received

shop.
are

Both

strikingly

Youngblood’s

job

Compare Job Announcements (Doc. Nos. 79-9,

79-10) with Job Description (Doc. No. 80-11).

Youngblood

argues that these announcements were, in essence, to fill
her position.

She argues that the college’s willingness

32

to pay a higher salary for the same work that Youngblood
had performed, the same higher salary which it had always
paid to Glover, offers further support for the notion
that the community college paid less to Youngblood than
she deserved because of her sex.
WCC argues that Youngblood’s job was eliminated upon
her retirement and the job announcements were for an
entirely new position.
has

one

title,

It points out that the ‘new’ job

“Duplications
another,

Technician,”

while

Youngblood

had

“Printing/Duplications

Technician.”

This point is singularly unpersuasive in

light of the fact that Youngblood’s own title changed
several times over the years and indeed at one point
apparently was “Duplications Technician.” See Memorandum
(Doc. No. 70-1) at 112; see also Josey Aff. (Doc. No. 7015) at 2 (emphasizing that “Job duties, rather than job
titles,

are

determinative”

schedule placement).

33

for

purposes

of

salary

WCC also offers evidence that, notwithstanding what
is actually written in the job announcements, the ‘new’
position

is

entirely

different

from

Youngblood’s.

Specifically, it argues that the ‘new’ job is focused on
See Bell Aff. (Doc.

graphic design and computer skills.
No. 70-4) at 53-7.

But Youngblood has offered evidence

that indicates that that is not so.

Glover testified

that Kimberly Johnson, who was hired to fill the ‘new’
position, currently does the work that Youngblood used to
do.

Glover Dep. (Doc. No. 76-3) at 12.

And Johnson

herself, when asked to describe her job duties, barely
mentioned graphic design.
4)

at

6

(discussing

See Johnson Dep. (Doc. No. 76-

running

copy

machines,

ordering

supplies, clearing paper jams, contacting vendors for
maintenance and, incidentally, ordering “any kind of
software that I need for design work”).
Finally, WCC points out that the ‘new’ job contained
a

more

demanding

Youngblood’s

position

educational
required

34

requirement
only

a

while

high-school

diploma.

But it is undisputed that Youngblood satisfied

the educational requirement for the ‘new’ position and
she has offered expert testimony that the decision not to
include a similar requirements in her own job description
was “illogical and unjustifiable.”
No. 82-12) at 2.

Buford Notes (Doc.

Taking these considerations together,

a jury could discredit the community college’s evidence
that

the

‘new’

position

is

new

at

all

and

instead

conclude that the community college simply repackaged
Youngblood’s job with a slightly different title and a
higher salary.

And a reasonable jury could certainly

rely on that conclusion as evidence that there is no
college-wide policy of maintaining salaries, but rather
that Youngblood was underpaid based on sex.
The fact that the ‘new’ job was eventually filled by
Johnson, a woman, would not preclude a jury from reaching
this conclusion.

The question under the Equal Pay Act is

why Glover and Youngblood were paid different amounts,
and specifically whether WCC can show that “sex provided

35

no basis for the wage differential.”
at 907.

Schwartz, 807 F.2d

The evidence about the ‘new’ job would permit a

jury to conclude that the community college was prepared
to compensate Youngblood’s work at the same E4, 05 salary
that Glover received, but chose not to do so.

In other

words, the evidence relating to the ‘new’ job tends to
establish that Youngblood was paid less than her work
merited, while the community college’s alleged policy
suggests, rather, that Youngblood was paid appropriately
but Glover was paid more than his work merited.
are

two

conflicting

differential,

and

explanations

believing

disbelieving the other.

one

for

offers

the
a

These
salary

basis

for

Therefore, although the ‘new’

job was eventually filled by a woman, the fact that it
was advertised at the higher salary schedule offers an
additional reason to discredit the community college’s
claims about the alleged salary-maintenance policy.

The

court thus finds that the college has failed to establish

36

the existence of its alleged policy as a matter of
undisputed fact.
In sum, then, Youngblood has established a prim-facie
case of sex discrimination in the form of unequal payment
for equal work as between herself and Glover.

WCC has

failed to carry its heavy burden to establish, as a
matter of law, that it is entitled to the affirmative
defense.

As the Eleventh Circuit has observed, “The

Equal Pay Act prescribes a form of strict liability:”
once the plaintiff has established a prima facie case,
“[i]f the defendant fails [to establish the affirmative
defense], the plaintiff wins.”
1533.

Miranda, 975 F.2d at

Therefore, summary judgment is denied as to this

claim.8
8. The community college also argues for summary
judgment based on the Equal Pay Act’s statute of
limitations.
See 29 U.S.C. § 255.
The parties agree
that, if the Equal Pay Act claim otherwise survives
summary judgment and is successful at trial, Youngblood
can recover damages for at least some of her past
underpayment. See Ledbetter v. Goodyear Tire & Rubber
Co., Inc., 550 U.S. 618, 640 (2007) (majority opinion)
(abrogated by statute on other grounds, PL 111-2, 123
(continued...)
37

B.
Title

VII

bars

an

Title VII
employer

from

discriminating

against an employee “because of ... race ... [or] sex.”
42 U.S.C.2000e–2 (a)(1).

In this case, Youngblood has

alleged discrimination, in the form of unequal payment,
both because she is black and because she is a woman.
Although the burden-shifting framework articulated in
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802–05
(1973), “is not, and never was intended to be, the sine
qua non for a plaintiff to survive a summary judgment
motion in an employment discrimination case,” Smith v.
Lockheed-Martin Corp., 644 F.3d 1321, 1328 (11th Cir.
2011), in this case the parties agree that court should
apply it.
8. (...continued)
Stat 5); Ledbetter, 550 U.S. at 658 n.8 (Ginsburg, J.,
dissenting) (“Under the EPA ... a claim charging denial
of equal pay accrues anew with each paycheck.”) (citing
1 B. Lindemann & P. Grossman, Employment Discrimination
Law 529 (3d ed. 1996)).
Therefore, this argument is
about the amount of damages, not whether Youngblood has
a claim at all, and will be denied at this time. The
community college can raise this issue at the time of
trial.
38

First, the plaintiff must establish a prima-facie
case; this burden is “not onerous.”

Vessels v. Atlanta

Indep. Sch. Sys., 408 F.3d 763, 769 (11th Cir. 2005).
For a claim of pay discrimination, the plaintiff must
establish:
(2)

she

“(1)

she

received

belongs

low

wages;

to

a

(3)

[protected
similarly

group];
situated

comparators outside the protected class received higher
compensation; and (4) she was qualified to receive the
higher wage.”

Cooper v. S. Co., 390 F.3d 695, 735 (11th

Cir. 2004), overruled on other grounds as recognized in
Feliciano v. City of Miami Beach, 707 F.3d 1244, 1253
(11th Cir. 2013).
The burden of production then shifts to the employer
“to

rebut

the

presumption

by

producing

sufficient

evidence to raise a genuine issue of fact as to whether
the employer discriminated against the employee.”

Hall

v. Alabama Ass’n of Sch. Boards, 326 F.3d 1157, 1166
(11th Cir. 2003) (incorporating opinion of Thompson, J.).
“This

may

be

done

by

the

39

employer

articulating

a

legitimate, non-discriminatory reason for the employment
decision, which is clear, reasonably specific, and worthy
of credence.”
plaintiff:
production,

Id.

The burden then shifts back to the

“Once the employer satisfies this burden of
the

employee

then

has

the

burden

of

persuading the court that the proffered reason for the
employment decision is a pretext for discrimination.

The

employee may satisfy this burden either directly, by
persuading the court that a discriminatory reason more
than likely motivated the employer, or indirectly, by
persuading the court that the proffered reason for the
employment decision is not worthy of belief.

By so

persuading the court, the employee satisfies his ultimate
burden

of

evidence

demonstrating
that

he

discrimination.”

has

by

been

a

preponderance

the

victim

of

of

the

unlawful

Id.

The community college makes two principal arguments
for

summary

judgment

discrimination claims.

on

Youngblood’s

Title

VII

pay-

First, it argues that Youngblood

40

failed to identify proper comparators and so failed to
establish a prima-facie case.

Second, it argues that it

has articulated legitimate reasons for its actions and
that

Youngblood

has

not

shown

those

reasons

were

pretextual.

a. Prima-Facie Case
The

first

argument

is

without

merit.

There

is

significant overlap between a claim under the Equal Pay
Act,

analyzed

discrimination

above,
in

pay.

and

a
The

Title

VII

Eleventh

claim

Circuit

of
has

discussed the critical differences in the two claims:
“The burdens of proof are different
under the two laws. A plaintiff suing
under the Equal Pay Act must meet the
fairly strict standard of proving that
she performed substantially similar work
for less pay. The burden then falls to
the employer to establish one of the
four affirmative defenses provided in
the statute.
Under the disparate
treatment
approach
of
Title
VII,
however, there is a relaxed standard of
similarity
between
male
and
female-occupied jobs, but a plaintiff
has the burden of proving an intent to
41

discriminate on the basis of sex (or
race or national origin).”
Miranda, 975 F.2d at 1526 (emphasis added).9

In other

words, the standard for appropriate comparators is not
more but less stringent when considering a Title VII
claim as opposed to an Equal Pay Act claim.

But, as

discussed above, Youngblood has already established that
Glover is a comparator for Equal Pay Act purposes, and
the community college specifically acknowledges as much.
See Dft. Reply Br. (Doc. No. 85) at 9 (“There is no
dispute that Youngblood and Glover performed the same job
duties.”).

Under

Miranda,

if

a

comparator

is

sufficiently similar under the Equal Pay Act, he is also
sufficiently similar under Title VII.

See Mulhall, 19

F.3d at 598 (“Clearly, if plaintiff makes a prima facie

9. There is an additional difference, not relevant to
this case: under the Equal Pay Act, the plaintiff must
show she was employed in the same “establishment” as her
comparator, while Title VII does not contain this
requirement. Mulhall v. Advance Sec., Inc., 19 F.3d 586,
597 (11th Cir. 1994).
42

case under the EPA, she simultaneously establishes facts
necessary to go forward on a Title VII claim.”).
To the extent that WCC argues otherwise, it misreads
the caselaw.

It cites two unpublished Eleventh Circuit

cases for the proposition that, for the purposes of Title
VII, “[t]he comparator must be nearly identical to the
plaintiff.”

Drake-Sims

v.

Burlington

Coat

Factory

Warehouse of Alabama, Inc., 330 F. App'x 795, 803 (11th
Cir. 2009) (internal quotation marks omitted, alteration
in original); see also Welch v. Mercer Univ., 304 F.
App'x 834, 837 (11th Cir. 2008) (same).

Both cases rely,

in turn, on Wilson v. B/E Aerospace, Inc., 376 F.3d 1079,
1091 (11th Cir. 2004).

Wilson involved a claim of

discriminatory discipline and noted that, “The comparator
must be nearly identical to the plaintiff to prevent
courts from second-guessing a reasonable decision by the
employer.”

Id.

For that proposition, it cited Silvera

v. Orange Cnty. Sch. Bd., 244 F.3d 1253, 1259 (11th Cir.

43

2001),

another

discipline

case,

in

which

the

court

stated, in relevant part:
“The most important factors in the
disciplinary context ... are the nature
of the offenses committed and the nature
of the punishments imposed. In order to
satisfy the similar offenses prong, the
comparator’s misconduct must be nearly
identical to the plaintiff’s in order to
prevent courts from second-guessing
employers’ reasonable decisions and
confusing apples with oranges.”
Silvera,

244

F.3d

at

1259

(citation

and

internal

quotation marks omitted); see also Maniccia v. Brown, 171
F.3d 1364, 1368–69 (11th Cir. 1999) (same).
It is clear, then, that the source of this line of
‘identical’ language is not a requirement in all Title
VII cases that comparators be nearly identical in all
regards, but that, in a discipline case, a comparator’s
misconduct must be nearly identical.

See Vega v. Invsco

Grp., Ltd., 432 F. App’x 867, 870 (11th Cir. 2011) (“We
have explained that, particularly in cases involving
employee discipline or misconduct, the individual that
the

plaintiff

identifies

as
44

her

comparator

must

be

similarly situated in all relevant respects and that the
comparator’s misconduct must be nearly identical to the
plaintiff.”) (emphasis added) (internal quotation marks
omitted).
To the extent that Wilson may be read, as WCC reads
it, to impose a ‘nearly identical’ requirement as to all
aspects of comparators in all Title VII cases, including
pay-discrimination cases, it would directly conflict with
the Eleventh Circuit’s prior precedent in Miranda.

See

Miranda, 975 F.2d at 1526 (“Under the disparate treatment
approach of Title VII ... there is a relaxed standard of
similarity

between

would

Miranda

male

therefore

and

female-occupied

control

Circuit’s prior-precedent rule.

under

the

jobs”).
Eleventh

See Burke-Fowler v.

Orange Cnty., Fla., 447 F.3d 1319, 1323 & n.2 (11th Cir.
2006)

(applying

prior-precedent

rule

to

find

that

Maniccia controls over later precedent as to discipline
claims).

45

The community college makes no other argument as to
the

prima-facie

case,

and

the

court

concludes

that

Youngblood has established a prima-facie case of pay
discrimination based on sex and race.

Therefore, the

burden shifts to the community college to raise a genuine
issue of fact as to the discrimination.

b. Non-discriminatory Reason and Pretext
WCC has articulated legitimate, non-discriminatory
reasons for paying Youngblood less than it paid Glover:
namely, the same practice discussed above of red circling
Glover’s

prior

salary

because

of

his

alleged

health

problems and the community college’s alleged across-theboard policy of not reducing salaries.

While the court

has already concluded that the community college has not
established the affirmative defense to the Equal Pay Act
based on red circling as a matter of undisputed fact, it
has “produc[ed] sufficient evidence to raise a genuine
issue of fact as to whether [it] discriminated against

46

[Youngbood].”

Hall, 326 F.3d at 1166.

The community

college “has a burden of production, not of persuasion,
and thus does not have to persuade a court that it was
actually motivated by the reason advanced.”

Id.

Its

“burden of production in rebutting the prima facie case
is ‘exceedingly light.’”

Miranda, 975 F.2d at 1529

(quoting Perryman v. Johnson Products, Inc., 698 F.2d
1138, 1142 (11th Cir. 1983)).

The community college has

carried that light burden in this case.
Therefore, the burden shifts back to Youngblood to
establish that the proffered explanation is pretextual.
This court “must, in view of all the evidence, determine
whether [Youngblood] has cast sufficient doubt on [WCC}’s
proffered

nondiscriminatory

reasons

to

permit

a

reasonable factfinder to conclude that [its] proffered
‘legitimate reasons were not what actually motivated its
conduct.’”

Combs v. Plantation Patterns, 106 F.3d 1519,

1538 (11th Cir. 1997) (quoting Cooper-Houston v. Southern
Ry. Co., 37 F.3d 603, 605 (11th Cir. 1994)).

47

The court

“must evaluate whether [Youngblood] has demonstrated such
weaknesses,

implausibilities,

inconsistencies,

incoherencies, or contradictions in [WCC]’s proffered
legitimate

reasons

for

its

action

that

a

reasonable

factfinder could find them unworthy of credence.”
106 F.3d at 1538

Combs,

(internal quotation marks omitted).

The community college argues that Youngblood has
simply offered no evidence to support an inference of
pretext, but the court disagrees.

As discussed above,

Youngblood has cast serious doubt on the health rationale
of the transfer: both Youngblood and Glover himself deny
that Glover had any health-related problems at his prior
position, and neither the contemporaneous memorandum nor
any

other

document

cited

by

the

community

college

contains any indication that the transfer was related to
Glover’s health.

As discussed above, a reasonable jury

could easily conclude, based on this evidence, that the
community college and its personnel made up the account

48

of Glover’s health problems after the fact to justify his
higher salary.
Similarly, as discussed above, Youngblood has offered
sufficient evidence for a jury to conclude that the
alleged across-the-board salary-maintenance policy was
pretextual as well.

The only evidence that the community

college cites to support the notion of a college-wide
policy of not lowering salaries comes in the form of
testimony

from

community-college

President Young.

employees,

including

As discussed in more detail above, a

jury could discredit the existence of this policy for
three reasons.

First, the community college has cited no

evidence of any written policy to that effect, nor any
evidence of other instances in which prior salaries were
maintained pursuant to the policy.

Second, if a jury had

already found the community college’s account of the
reasons for Glover’s transfer to have been made up after
the

fact,

that

very

conclusion

would

serve

as

circumstantial evidence to reject the testimony about a

49

campus-wide policy of maintaining salaries as well.

See

St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 511 (1993)
(“The factfinder’s disbelief of the reasons put forward
by

the

defendant

(particularly

if

disbelief

is

accompanied by a suspicion of mendacity) may, together
with the elements of the prima facie case, suffice to
show intentional discrimination.” ) (emphasis added).
Third, Youngblood has introduced evidence that the ‘new’
job advertised upon her retirement was not new at all,
but was rather Youngblood’s own job but with Glover’s
higher

salary

schedule.10

This

provides

further

circumstantial evidence to allow a jury to conclude that
there was no policy of maintaining salaries and thus that
this purported reason for Glover’s higher salary was

10. The ‘new’ job was eventually filled by Johnson,
a white woman, and Youngblood pointed to her as an
additional comparator for her Title VII claim based on
race. The community college argues that Johnson is not
a proper comparator in light of her allegedly different
job duties. The court has not relied on Johnson as a
comparator; given that Glover is a clear comparator, the
court simply need not reach the question of whether
Johnson is also one in order to find a prima-facie case.
50

pretextual as well.
lack

of

any

In other words, based on the total

corroborating

documentation

about

the

community college’s purported reasons for paying him more
than it paid Youngblood, the conflicting evidence about
Glover’s health, and evidence tending to show that in
reality

Youngblood’s

Glover,

a

job

reasonable

merited

jury

could

the
find

salary
the

paid

to

community

college’s alleged policy did not exist.
The
college’s

genuine

disputes

proffered

regarding

explanations,

when

the

community

combined

with

Youngblood’s prima-facie case, warrant denial of summary
judgment as to the claims.11

As the Supreme Court has

11. Youngblood also pointed to background evidence to
support her discrimination claims.
She cited this
court’s opinions in a previous case regarding race and
sex discrimination in Alabama’s postsecondary system.
See Shuford v. Alabama State Bd. of Educ., 846 F. Supp.
1511 (M.D. Ala. 1994) (Thompson, J.); Shuford v. Alabama
State Bd. of Educ., 897 F. Supp. 1535 (M.D. Ala. 1995)
(Thompson, J.). Youngblood also introduced a memorandum
from the president of the aviation college, where she
first worked, noting that she was one of only three
minorities at the college and that she had apparently
been scheduled for less than full time in order “to limit
her potential for future employment status and for
(continued...)
51

stated, “The factfinder’s disbelief of the reasons put
forward by the defendant (particularly if disbelief is
accompanied by a suspicion of mendacity) may, together
with the elements of the prima facie case, suffice to
show intentional discrimination.”

St. Mary's Honor Ctr.

v. Hicks, 509 U.S. 502, 511 (1993).

“Thus, rejection of

the defendant’s proffered reasons will permit the trier
of

fact

to

infer

discrimination,

the

and

ultimate

...,

upon

fact
such

of

intentional

rejection,

[n]o

additional proof of discrimination is required....”
(emphasis

and

footnote

omitted);

see

also

Reeves

Id.
v.

Sanderson Plumbing Products, Inc., 530 U.S. 133, 147
(2000)

(“Proof

that

the

defendant’s

explanation

is

unworthy of credence is simply one form of circumstantial
evidence that is probative of intentional discrimination,

11. (...continued)
benefits.”
Memorandum (Doc. No. 70-1) at 43.
The
community college objected to this evidence on relevance
grounds. The court has not relied on this evidence for
the purposes of this opinion and so need not resolve the
objection at this time.
52

and it may be quite persuasive.”).

Indeed, the Supreme

Court has been quite clear on this point:
“In appropriate circumstances, the trier
of fact can reasonably infer from the
falsity of the explanation that the
employer is dissembling to cover up a
discriminatory
purpose.
Such
an
inference is consistent with the general
principle of evidence law that the
factfinder is entitled to consider a
party’s dishonesty about a material fact
as affirmative evidence of guilt.
Moreover,
once
the
employer’s
justification
has
been
eliminated,
discrimination may well be the most
likely
alternative
explanation,
especially since the employer is in the
best position to put forth the actual
reason for its decision.
Thus, a
plaintiff’s prima facie case, combined
with sufficient evidence to find that
the employer’s asserted justification is
false, may permit the trier of fact to
conclude that the employer unlawfully
discriminated.”
Id. at 147-48 (citations and internal quotation marks
omitted, emphasis added).

In this case, the evidence

allowing a jury to conclude that the community college’s
proffered

reasons

were

pretextual,

combined

with

Youngblood’s prima-facie case, is sufficient for the

53

Title VII claims to reach a jury.
judgment

will

be

denied

on

Therefore, summary

Youngblood’s

Title

VII

race-and-sex-discrimination claims.12

C. Section 1983 (Equal Protection and § 1981)
Finally, the court turns to Youngblood’s claims that
President

Young,

in

her

individual

capacity,

discriminated against Youngblood in pay, in violation of
the Equal Protection Clause of the Fourteenth Amendment
and 42 U.S.C. § 1981, as both are enforced through 42
U.S.C. § 1983.

The Equal Protection Clause provides

that, “No state shall make or enforce any law which shall
... deny to any person within its jurisdiction the equal
protection of the laws.”

U.S. Const. amend. XIV, § 1.

Section 1981 provides that, “All persons ... shall have
the same right ... to make and enforce contracts ... as
12. For the same reasons stated above, see supra note
8, the community college’s motion for summary judgment is
denied to the extent it is based on the Title VII statute
of limitations, 42 U.S.C. § 2000e–5. See Lilly Ledbetter
Fair Pay Act of 2009, PL 111-2, 123 Stat 5 (abrogating
Ledbetter, 550 U.S. 618).
54

is enjoyed by white citizens...”

42 U.S.C. § 1981(a).

In the context of an employment-discrimination claim such
as this one, the elements of both the equal-protection
claim and the § 1981 claim are the same as the elements
of a Title VII discrimination claim.

Rice-Lamar v. City

of Ft. Lauderdale, Fla., 232 F.3d 836, 843 n.11 (11th
Cir.

2000).

The

§

1981

claim

alleges

race

discrimination, while the Equal Protection Clause claim
alleges both sex and race discrimination.

Young argues

that she is entitled to both absolute and qualified
immunity.
Young argues first that she is entitled to absolute
sovereign

immunity.

The

Eleventh

Amendment

and

the

related doctrine of sovereign immunity bar suits against
the State or an arm of the State absent waiver by the
State or valid abrogation by Congress.
Graham, 473 U.S. 159, 167 n.14 (1985).
the State.

Kentucky v.

WCC is an arm of

See LaFleur v. Wallace State Cmty. Coll., 955

55

F. Supp. 1406, 1422 (M.D. Ala. 1996) (De Ment, J.); State
Bd. of Educ. v. Mullins, 31 So. 3d 91, 96 (Ala. 2009).
Generally, sovereign immunity does not protect state
officials

when

they

are

sued

in

their

individual

capacities.

Harden v. Adams, 760 F.2d 1158, 1164 (11th

Cir. 1985).

“However, ‘when a state official is made a

defendant in a suit, whether it is nominally brought
against him in his official or individual capacity, a
court

must

interest.’”

determine

the

real,

substantial

party

in

Alexander v. Chattahoochee Valley Cmty.

Coll., 325 F. Supp. 2d 1274, 1295 (M.D. Ala. 2004)
(Thompson, J.) (quoting Harbert Intern., Inc. v. James,
157 F.3d 1271, 1277 n.3 (11th Cir. 1998)); see also
Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89,
101 (1984).

“‘The general rule is that a suit is against

the sovereign if the judgment sought would expend itself
on the public treasury or domain, or interfere with the
public administration, or if the effect of the judgment
would be to restrain the Government from acting, or to

56

compel it to act.’” Alexander, 325 F. Supp. 2d at 1295
(quoting Harbert, 157 F.3d at 1277 n.3).
Young argues the State is the real, substantial party
in interest in this case, noting that she was acting as
president

of

WCC

at

all

relevant

times

and

that

Youngblood seeks, among other things, reinstatement of
her employment by the community college, or, in other
words, by the State.
seeks

from

Young

in

However, the relief Youngblood
her

individual

reinstatement but damages.
not bar such relief.

capacity

is

not

The Eleventh Amendment does

Cross v. State of Ala., State Dep’t

of Mental Health & Mental Retardation, 49 F.3d 1490, 1503
(11th Cir. 1995) (Eleventh Amendment did not bar damages
against

defendants

sued

in

individual

capacities

in

employment discrimination case).13
13. Young cites this court’s decision in Alexander as
finding to the contrary, but that case is inapposite. In
Alexander, all of the plaintiff’s federal-law claims
against the individual defendant were resolved on the
merits. 325 F.Supp.2d at 1294-5. The court addressed
immunity in the context of only the plaintiff’s state-law
claims, specifically claims that the individual defendant
(continued...)
57

Next,
doctrine

Young
of

invokes

qualified

qualified
immunity

immunity.

protects

“The

government

officials ‘from liability for civil damages insofar as
their

conduct

does

not

violate

clearly

established

statutory or constitutional rights of which a reasonable
person would have known.’”

Pearson v. Callahan, 555 U.S.

223, 231 (2009) (quoting Harlow v. Fitzgerald, 457 U.S.
800, 818 (1982)).

In deciding whether an official is

entitled to this immunity, courts analyze (1) whether the
plaintiff has shown an actual violation of his right and
(2), if so, whether the right at issue was clearly

13. (...continued)
“violated state pay laws and regulations and an ‘implied
contract’ by placing Alexander on the wrong pay scale.”
Id. at 1295-6. In this case, of course, the claims do
not sound in contract or in related state regulations.
Rather, the claims are that Young discriminated against
Youngblood on the basis of race and sex in violation of
federal law, which was just the kind of claim permitted
in Cross. See Cross, 49 F.3d at 1507 (equal-protection
claim based on sexual harassment). Thus, Cross controls,
and Alexander is distinguishable.
58

established at the time it was violated.

Pearson, 555

U.S. at 232.14
“Qualified immunity protects government officials, in
their individual capacities, from suit unless the law
preexisting the defendant official’s supposedly wrongful
act was already established to such a high degree that
every objectively reasonable official standing in the
defendant’s

place

would

be

on

notice

that

what

the

defendant official was doing would be clearly unlawful
given the circumstances.”
1275,

1282

explained,

(11th
the

Cir.

Pace v. Capobianco, 283 F.3d
2002).

requirement

that

As
a

this
right

court
be

has

clearly

established “is fundamentally a question of fair notice:
If the law does not make the officer aware that his
‘conduct would be clearly unlawful,’ then he is protected
by qualified immunity, Saucier v. Katz, 533 U.S. 194, 202
(2001);

however,

if

the

plaintiff

can

show

that

‘a

14. Initially, Young must prove that she was acting
within her discretionary authority. In this case, there
is no dispute that Young was doing so.
59

materially similar case has already been decided’ in his
favor, then fair notice exists and qualified immunity
does not attach. Mercado v. City of Orlando, 407 F.3d
1152,

1159

(11th

Cir.

Brundidge,

2012

WL

(Thompson,

J.);

see

2005).”

705358
also

at

Schultz
*5

Mercado,

(M.D.
407

v.

City

Ala.

F.3d

at

of

2012)
1159

(discussing ways to demonstrate that right was clearly
established).
Here, the equal-protection and § 1981 claims, as they
are

enforced

through

§

1983,

“effectively

merge,”

Alexander, 325 F. Supp. 2d at 1276 n.1, except that the
§ 1981 claim applies to only race discrimination and
requires a contractual relationship, discussed further
below.

Otherwise, the elements of both claims are the

same in this context as the elements of a Title VII
discrimination claim, again with the exception of the
contractual requirement of
at 843 n.11.

§ 1981.

Rice-Lamar, 232 F.3d

Given that the court has already concluded

that, with the evidence considered in the light most

60

favorable to Youngblood, the community college violated
her rights under Title VII, it therefore is clear that on
the same basis her rights were violated under § 1983.
See Hall v. Alabama Ass’n of Sch. Boards, 326 F.3d 1157,
1175 (11th Cir. 2003) (incorporating opinion of Thompson,
J.) (applying same analysis for Title VII, § 1981, and
Fourteenth Amendment).

The question is whether Young’s

conduct violated those rights.
The

court

concludes

that,

with

the

evidence

considered in the light most favorable to Youngblood,
there is sufficient evidence for a jury to find that
Young’s own conduct did violate Youngblood’s rights.

The

memorandum first assigning Glover to the print shop with
“no salary adjustment” was signed and approved by Young.
Memorandum (Doc. No. 78-2) at 36.
both

Glover’s

containing

and

their

Youngblood’s
different

Thereafter, she signed
employment

salary

contracts

schedules.

See

Contracts (Doc. No 81-8) at 2-14; (Doc. No. 78-2) at 3839.

If a jury should find that the community college

61

discriminated against Youngblood in violation of Title
VII,

then

that

jury

could

also

conclude

that

Young

herself did so based on her personal involvement and
approval of the differential pay.
put

forward

sufficient

evidence

Thus, Youngblood has
to

establish,

for

summary-judgment purposes, that Young violated her equalprotection rights.
Youngblood’s § 1981 claim requires an additional
step.

Young

argues

that

Youngblood

cannot

recover

against her under § 1981 because there was no contract
between the two of them; the only relevant contracts were
between Youngblood and WCC, although Young signed them on
behalf of the community college.
Supreme

Court’s

decision

in

McDonald, 546 U.S. 470 (2006).

Young relies on the

Domino’s

Pizza,

Inc.

v.

In that case, the Court

found that “a plaintiff cannot state a claim under § 1981
unless he has (or would have) rights under the existing
(or

proposed)

contract

that

62

he

wishes

‘to

make

and

enforce.’” Id. at 479-80.15

Young argues that Youngblood

has no rights under any contract with Young.
But Domino’s Pizza did not require a contract between
the plaintiff and the defendant.

In Domino’s Pizza, the

plaintiff,

that

McDonald,

alleged

the

defendant,

Domino’s, breached its contracts with a third party, JWM,
based on racial animus towards McDonald.

Id. at 473.

McDonald was the sole shareholder and president of JWM,

15. The court notes that Domino’s Pizza appears to
speak more broadly than is warranted in this regard. The
opinion states generally that a contractual relationship
is required for all § 1981 claims. See id. at 476 (“Any
claim brought under § 1981, ... must initially identify
an impaired ‘contractual relationship’”).
But § 1981
also protects rights that do not directly relate to
contracts: specifically, the rights “to sue, be parties,
give evidence, and to the full and equal benefit of all
laws and proceedings for the security of persons and
property as is enjoyed by white citizens, and [to] be
subject to like punishment, pains, penalties, taxes,
licenses, and exactions of every kind, and to no other.”
42 U.S.C. § 1981(a). Properly read, the Court’s ruling
in Domino’s Pizza “was limited to the ‘make and enforce’
contracts clause of [§] 1981.” Mazloum v. D.C. Metro.
Police Dep’t, 522 F. Supp. 2d 24, 38 (D.D.C. 2007)
(Bates, J.).
That is the provision at issue in this
case, so Domino’s Pizza does bind this court in resolving
Youngblood’s § 1981 claim.
63

id.

at

472,

but

the

Court

relied

on

principles

of

corporation and agency law to reject the notion that
McDonald could therefore step into JWM’s shoes for the
purposes of his § 1981 claim.

Id. at 477.

Thus, the

Court found, McDonald himself could point to no contract
to which he was a party and to no anticipated contract to
which he might be a party.
no claim.

The plaintiff therefore had

But the defendant in that case, Domino’s, of

course was a party to the relevant contract.

In this

case, Youngblood does point to contracts to which she was
a

party,

namely

her

employment

contracts.

Young’s

argument, that Youngblood must also point to a contract
to which the individual defendant was a party, is simply
not addressed by Domino’s Pizza.
That being the case, Young’s argument is foreclosed.
Binding

precedent

defendant

may

be

in

this

liable

circuit
for

indicates

interference

that

a

with

a

contractual relationship even though the defendant is not
herself a party to the contract. Faraca v. Clements, 506

64

F.2d

956,

959

(5th

Cir.

1975)

(“a

third

party’s

interference with those rights guaranteed under [§] 1981
... will subject such a person to personal liability”).
And, indeed, Domino’s Pizza itself approvingly cited a
previous case involving defendants similarly situated to
Young in which the defendants were not parties to the
contracts but rather had allegedly interfered with them.
See Burnett v. Grattan, 468 U.S. 42 (1984) (affirming
denial of motion to dismiss on statute-of_limitations
grounds in suit against president and other officials of
college under § 1981).
Thus,

this

court

concludes

that

Young

has

read

Domino’s Pizza too broadly: that case requires that the
plaintiff be a party to a contract (or potential party to
a potential contract), but applies no similar requirement
with regard to the defendant.
party

to

satisfies
elements

the

employment

Domino’s
of

this

contracts

Pizza.
claim

Because Youngblood was a

are

65

in

question,

And

because,

the

same

as

she

otherwise,
the

equal-

protection claim, the court finds that, with the evidence
considered in the light most favorable to Youngblood,
there is sufficient evidence for a jury to conclude that
Young violated Youngblood’s rights under § 1981 as well.
The court therefore turns to the second prong of
qualified immunity, whether the rights in question were
clearly

established.

It

was,

of

course,

clearly

established that Youngblood had a constitutional right to
be “free from unlawful ... discrimination ... in public
employment.”

Cross, 49 F.3d at 1507 (citing Davis v.

Passman, 442 U.S. 228, 235 (1979)).

The same is true of

her right to be free from interference with contractual
See Faraca, 506

relationships on the basis of her race.
F.2d

at

clearly

959.

But

whether

established

rights

Young’s
must

conduct

not

be

violated

considered

“generally and at a very high order of abstraction” but
rather “in light of the specific context of the case.”
Gilmore v. Hodges, 738 F.3d 266, 277-78 (11th Cir. 2013)
(internal quotation marks omitted).

66

In this case, with the evidence considered in the
light most favorable to Youngblood, a reasonable jury
could conclude that Young intentionally paid Glover more
than Youngblood because of Youngblood’s race and sex.
Young

clearly

had

fair

notice

that

such

intentional

discrimination in public employment would expose her to
liability under the Equal Protection Clause as enforced
through § 1983.

See, e.g., Nicholson v. Georgia Dep’t of

Human Res., 918 F.2d 145, 148 (11th Cir. 1990) (no
qualified

immunity

where

female

employee

treated

differently solely because of sex); Badia v. City of
Miami, 133 F.3d 1443, 1445 (11th Cir. 1998) (no qualified
immunity where race and sex discrimination motivated
differential treatment of employee); Cross, 49 F.3d at
1503 (denying qualified immunity for § 1983 claim based
on

supervisor’s

discrimination).

knowledge

of

sexual

harassment

and

Similarly, it is well established that

“[§] 1981 prohibits intentional race discrimination in
the

making

and

enforcement

67

of

public

and

private

contracts, including employment contracts.”

Ferrill v.

Parker Grp., Inc., 168 F.3d 468, 472 (11th Cir. 1999)
(citing Johnson v. Railway Express Agency, 421 U.S. 454,
459–460 (1975)).16

As such, Young is not entitled to

qualified immunity.17
16.
It could reasonably be argued that, the court
having found that Young is not entitled to qualified
immunity on the § 1983 Equal Protection claim, it is
unnecessary to reach the qualified-immunity issue as to
the §-1981 claim, for the § 1981 claim is effectively
merged into the § 1983 claims Alexander, 325 F. Supp. 2d
at 1277 n. 1, citing Jett v. Dallas Independent School
Dist., 491 U.S. 701, 735 (1989); Busby v. City of
Orlando, 931 F.2d 764, 771 n. 6 (11th Cir. 1991); Felton
v. Polles, 315 F.3d 470, 482 (5th Cir. 2002). Indeed,
the § 1981 claim really adds nothing to this litigation.
Moreover, in this case, the court has denied
qualified immunity principally based on “‘question[s] of
evidence sufficiency, i.e., which facts a party may, or
may not, be able to prove at trial.’”
Plumhoff v.
Rickard, 134 S. Ct. 2012, 2019 (2014) (quoting Johnson v.
Jones, 515 U.S. 304, 313 (1995)) (internal quotation
marks omitted). If all genuine disputes of material fact
are resolved in favor of Youngblood, a reasonable jury
could infer Young intentionally paid Youngblood less
because of race and sex--a violation of clearly
established rights if there ever was one.
17. For the same reasons stated above, see supra note
8, to the extent it is based on the § 1983 statute of
limitations, see McNair v. Allen, 515 F.3d 1168, 1173
(11th Cir. 2008), Young’s motion for summary judgment is
denied. See Groesch v. City of Springfield, Ill., 635
(continued...)

***

Accordingly,

it

is

ORDERED

that

the

motion

for

summary judgment (Doc. No. 69) filed by defendants George
C. Wallace State Community College and Linda C. Young is
denied.
DONE, this the 1st day of July, 2014.
/s/ Myron H. Thompson
UNITED STATES DISTRICT JUDGE

17. (...continued)
F.3d 1020, 1028 (7th Cir. 2011).
69