Lyes v. City of Riviera Beach, FL

United States Court of Appeals,

Eleventh Circuit.

No. 96-4577.

Shari L. LYES, Plaintiff-Appellant,

v.

CITY OF RIVIERA BEACH, FLORIDA, Cinthia Becton, Marge Confrey, Bruce Guyton,
Bertha Orange, Barbara Rodriguez, Individually and in their official capacities as Members of the
Riviera Beach City Council, City of Riviera Beach, Florida, Neil Crilly, individually and in his
official capacity as Executive Director of the City of Riviera Beach Community Redevelopment
Agency, City of Riviera Beach Community Redevelopment Agency, Defendants-Appellees.

Nov. 5, 1997.

Appeal from the United States District Court for the Southern District of Florida. (No. 95-8285-CIV-
KLR), Kenneth L. Ryskamp, Judge.

Before EDMONDSON, Circuit Judge, and KRAVITCH and WOOD*, Senior Circuit Judges.

KRAVITCH, Senior Circuit Judge:

Shari Lyes contends that the City of Riviera Beach ("the City"), the City of Riviera Beach

Community Redevelopment Agency ("the CRA"), and several officials of both entities (collectively,

"appellees") discriminated against her because of her gender. Granting summary judgment, the

district court held that: (1) it lacked jurisdiction over Lyes's Title VII claim; (2) Lyes had not

pleaded a constitutional violation actionable under section 1983; and (3) suits under the civil rights

conspiracy statute, 42 U.S.C.A. § 1985(3) (1994), could not be premised upon gender-based
discrimination. We reverse and remand.

I.

Florida law permits the governing body of a county or municipality, after appropriate

findings of necessity, to create a community redevelopment agency. Fla. Stat. Ann. § 163.356(1)

(1997).1 The governing body and the redevelopment agency are not wholly separate. First, the

*
Honorable Harlington Wood, Jr., Senior U.S. Circuit Judge for the Seventh Circuit, sitting by
designation.
1
See id. § 163.355 (governing body must determine that: (1) slum or blighted areas or areas
with shortage of affordable housing exist in jurisdiction; and (2) redevelopment efforts are
"necessary in the interest of the public health, safety, morals, or welfare of the residents"); id. §
entities share control over redevelopment matters; the redevelopment agency is granted the "powers

necessary or convenient to carry out and effectuate the purposes and provisions" of Florida's

Community Redevelopment Act, subject to certain enumerated powers of the governing body. Id.

§§ 163.358, 163.370. Second, the entities share funds. A redevelopment agency receives a fraction

of the taxes levied by various governmental entities (including the governing body) within the

geographic boundaries of the redevelopment area. Id. § 163.387. Third, the entities may share

personnel. The redevelopment agency is run either by an appointed board of commissioners or by

the governing body itself. Id. §§ 163.356(2), 163.357(1)(a). In the latter case, although "[t]he

members of the governing body shall be the members of the agency, ... such members constitute the

head of a legal entity, separate, distinct, and independent from the governing body of the county or

municipality." Id. § 163.357(1)(b).

In Riviera Beach, the CRA receives approximately two-thirds of its funds from the City. The

City's governing body ("the City Council") also serves as the head of the CRA; each of the five

members of the City Council is likewise a member of the CRA Board of Commissioners.

Nevertheless, the CRA operates in some ways apart from the City. It maintains its own bank

accounts and records. It also has separate staff and offices.

The CRA hired Lyes as a redevelopment planner in July 1989, and she served in that

capacity until her termination in December 1993. At the time of Lyes's hire, Don DeLaney was the
CRA's Executive Director. DeLaney left in February 1992, whereupon the City Manager, Tony

Smith, became the interim Executive Director and drew a separate salary from CRA funds for his

service. In July 1993, Lyes learned that Neil Crilly, a planner for the City, was being considered as

the permanent Executive Director of the CRA. Lyes made inquiries as to why she was not offered

the job. She claims that she was told by Smith and one of the CRA Commissioners that she was

unqualified because of her sex. These people allegedly told her that discrimination is "the way of

163.356(1) (governing body must also find that there is a specific need for a redevelopment
agency).

2
the world," that she would have to "get used to it," and that gender was a factor because the

Executive Director would need to deal frequently with male developers. Lyes protested her

treatment in writing to the CRA Board.

The CRA Board named Crilly as Executive Director in August 1993, making him Lyes's

direct supervisor. The day after Crilly was hired, Lyes filed an EEOC complaint against the CRA,

alleging discrimination in hiring. Notice of the complaint was sent to Smith and was forwarded to

the CRA on August 25. The next day, Crilly suspended Lyes for refusing to attend a meeting.

Crilly claims that he had no knowledge of the EEOC complaint when he suspended Lyes. Lyes filed

a second EEOC charge, this time against the City, alleging retaliation. Upon returning from

suspension, Lyes received a written reprimand from Crilly.

Lyes filed internal grievances with respect to her suspension and reprimand. Consequently,

Crilly requested that James Waldron, Director of Personnel for the City, conduct a review of his

discipline towards Lyes. Waldron made a written report approving Crilly's conduct. Within two

months, Crilly gave Lyes a negative performance review, a week after which he fired her. Lyes filed

a third charge with the EEOC, naming the City and alleging retaliation for the second complaint.

She also requested an appeal hearing in connection with her firing. The CRA Board held a hearing

at which Lyes and the CRA were represented by counsel and presented evidence. The CRA Board

unanimously upheld Lyes's termination.
II.

Lyes's complaint alleged that the foregoing facts constituted gender discrimination actionable

under Title VII, 42 U.S.C. § 1983, 42 U.S.C. § 1985(3), and Florida law. Appellees responded to

the complaint with various motions to dismiss. After converting these motions into motions for

summary judgment and allowing the parties to present evidence beyond the initial pleadings, the

district court granted summary judgment. Specifically, it held that: (1) it lacked jurisdiction over

Lyes's Title VII complaint because the CRA was not an "employer" within the meaning of the

statute; (2) appellees were entitled to summary judgment on Lyes's section 1983 claim, in light of

3
this court's opinion in McKinney v. Pate, 20 F.3d 1550 (11th Cir.1994), cert. denied, 513 U.S. 1110,

115 S.Ct. 898, 130 L.Ed.2d 783 (1995); and (3) section 1985(3) does not encompass conspiracies

founded on non-racial animus. The district court also dismissed the pendent state law claims

without prejudice.

A.

Title VII makes it illegal for an "employer" to "discharge any individual, or otherwise to

discriminate against any individual with respect to his compensation, terms, conditions, or privileges

of employment, because of such individual's ... sex...." 42 U.S.C. § 2000e-2(a)(1). The statute

defines "employer" as "a person engaged in an industry affecting commerce who has fifteen or more

employees for each working day in each of twenty or more calendar weeks in the current or

preceding calendar year, and any agent of such a person...." Id. § 2000e(b). The existence of a Title

VII "employer" is a jurisdictional prerequisite to suit under the statute. Virgo v. Riviera Beach

Assocs., Ltd., 30 F.3d 1350, 1359 (11th Cir.1994). The district court concluded that Lyes, an

employee of the CRA, did not work for an "employer" because the CRA never has had fifteen or

more employees.2 Consequently, the court dismissed Lyes's Title VII claim for lack of jurisdiction.3

We review the district court's jurisdictional dismissal under summary judgment standards.

In Garcia v. Copenhaver, Bell & Assocs., 104 F.3d 1256, 1261 (11th Cir.1997), we held that where

a factual attack on subject matter jurisdiction implicates an element of the plaintiff's cause of action,

2
We note that the Supreme Court recently decided that an entity's "employer" status should be
determined by counting employees under the so-called "payroll method," see Walters v.
Metropolitan Educ. Enters., Inc., --- U.S. ----, 117 S.Ct. 660, 136 L.Ed.2d 644 (1997), but this
opinion does not affect the instant case. The parties agree that the CRA has had, under any
method of counting, no more than five staffpeople at any one time.
3
The City argues that the district court could have dismissed the City from the suit because
Lyes named only the CRA in her initial EEOC charge. Accordingly, the City asks us to affirm
on that alternative ground. Although it is true that, "as a general rule, the failure to name a party
in the EEOC complaint precludes a future civil action against that party," the requirement is
construed liberally, and "[w]here the purposes of the Act are fulfilled, a party unnamed in the
EEOC charge may be subjected to the jurisdiction of the federal courts." Virgo, 30 F.3d at 1358-
59. Here, in view of the shared interests of the City and the CRA detailed in the text, we
conclude that notice to the CRA (especially because it was sent to Smith in his dual capacity as
Executive Director and City Manager) fulfilled Title VII's purposes.

4
the district court should treat the attack as one on the merits of the plaintiff's claim. The court then

should analyze the challenge under Fed.R.Civ.P. 12(b)(6) (if it considers the complaint alone) or

Rule 56 (if evidence beyond the complaint is presented). Id. We further held that whether a

defendant was an "employer" under the Age Discrimination in Employment Act was an element of

the plaintiff's cause of action. Id. at 1262-65. Garcia dictates the appropriate standard in the present

case; appellees claimed that, as a factual matter, the district court lacked jurisdiction because Lyes

could not prove an element of her claim—that she worked for a Title VII "employer."4 Because this

is so and because the district court considered evidence beyond the allegations of the complaint, it

could not dismiss Lyes's Title VII claim unless there was no genuine issue of material fact about

whether Lyes worked for a Title VII "employer." On appeal, our review of the district court's

decision is plenary, and we apply the same standards as the district court. Gordan v. Cochran, 116

F.3d 1438, 1439 (11th Cir.1997).

Lyes claims that the district court erred in concluding that she did not work for an

"employer" within the meaning of Title VII because the CRA and the City together have more than

fifteen employees and because the entities should be aggregated for counting purposes. Courts have

held that aggregation is proper in three circumstances: when the plaintiff "show[s] that the

respondent and the actual employer are so integrated in their operations as to be a "single' employer;

show[s] that the respondent exercises such control over employment conditions as to be a "joint'

employer; or show[s] that the putative employer was an "agent' of the respondent, who is the true

employer." 2 BARBARA LINDEMANN & PAUL GROSSMAN, EMPLOYMENT DISCRIMINATION LAW

1309 (Paul W. Cane, et al., eds., 3d ed.1996). This circuit recognizes Title VII liability under all

4
It is clear that the "employer" issue is part of a Title VII plaintiff's claim. See Garcia, 104
F.3d at 1264 ("The only notable difference between [Title VII's and ADEA's] definitions of
"employer' is the number of "employees' each statute requires.").

5
three theories,5 but Lyes's primary theory, and the one we find dispositive for this appeal, was that

the CRA and the City function as a single employer.6

We have held that the factors to consider in determining whether private entities operate as

a single employer are those administratively promulgated for cases under the National Labor

Relations Act ("NLRA"). The "NLRB factors" include: "(1) interrelation of operations, (2)

centralized control of labor relations, (3) common management, and (4) common ownership or

financial control." McKenzie v. Davenport-Harris Funeral Home, 834 F.2d 930, 933 (11th

Cir.1987). Although the NLRA does not apply to public employers, 29 U.S.C.A. § 152(2)

(Supp.1997), Lyes suggests that the same test controls when the plaintiff alleges that two

government entities act as a single enterprise. She notes that Title VII's standard for liability does

not change depending on whether the plaintiff sues a public or a private entity. Dothard v.

Rawlinson, 433 U.S. 321, 331 n. 14, 97 S.Ct. 2720, 2728 n. 14, 53 L.Ed.2d 786 (1977) ("Congress

expressly indicated the intent that the same Title VII principles be applied to governmental and

private employers alike."). We agree with Lyes that there is no principled reason why jurisdictional

questions should be resolved any differently in this context, especially in view of the fact that Title

VII includes, as "persons" capable of being "employers," both private and many public entities, 42

U.S.C. § 2000e(a) & (b), and our liberal interpretation of the term "employer" in Title VII, Virgo,

30 F.3d at 1359. At least two courts have applied the NLRB factors to public employment cases.

5
See Virgo, 30 F.3d at 1359-61 (applying joint employer theory); McKenzie v. Davenport-
Harris Funeral Home, 834 F.2d 930, 933-34 (11th Cir.1987) (applying single employer theory);
Williams v. City of Montgomery, 742 F.2d 586, 588-89 (11th Cir.1984), cert. denied, 471 U.S.
1005, 105 S.Ct. 1868, 85 L.Ed.2d 161 (1985) (applying agency theory).
6
Lyes referred to the "agency" approach in her pleadings in the district court and before this
court. Specifically, she cited Owens v. Rush, 636 F.2d 283 (10th Cir.1980), in which the Tenth
Circuit held that a Title VII plaintiff who worked for a sheriff's department with fewer than
fifteen employees nevertheless worked for an "employer" because the sheriff was an agent of the
county (which had well over fifteen employees) for law enforcement purposes. Id. at 286. By
analogy, it seems proper to consider the CRA an agent of the City for redevelopment purposes
and to hold that the City was Lyes's "employer" in Title VII parlance. We need not reach this
issue, however, so we decline to say definitively whether agency liability would obtain in similar
circumstances.

6
See Rivera v. Puerto Rican Home Attendants Servs., Inc., 922 F.Supp. 943, 949 (S.D.N.Y.1996);

Riley v. County of Pike, 761 F.Supp. 74, 76 (C.D.Ill.1991).

Appellees argue, however, that binding circuit precedent precludes use of the NLRB factors

in government employment cases. In Dumas v. Town of Mt. Vernon, Ala., 612 F.2d 974 (5th

Cir.1980),7 the district court dismissed a suit against a town for lack of jurisdiction because the town

lacked the requisite number of employees. The appellant claimed that, under the NLRB test, the

town should have been considered a single employer with the county and the state. Our predecessor

circuit, however, "decline[d] to apply this theory to hold that the Town and the state or county, or

all three, are a "single employer,' " id. at 980 n. 9, without explaining why. The Fifth Circuit since

has stated that the Dumas court's cryptic statement meant that it considered the NLRB factors

inapplicable to government entities because the NLRA exempts public employers. Trevino v.

Celanese Corp., 701 F.2d 397, 404 n. 10 (5th Cir.1983).

Although the new Fifth Circuit's interpretation of our shared precedent is instructive, it does

not bind us, United States v. Thomas, 916 F.2d 647, 651 n. 4 (11th Cir.1990), and we respectfully

part company with the Trevino court. Instead, we think that the Dumas panel's reluctance to

consider the single employer theory is better explained in light of our subsequent decision in Rogero

v. Noone, 704 F.2d 518 (11th Cir.1983). In that case, we held that a Title VII plaintiff could not

aggregate the employees of a county tax collector with those of the county for jurisdictional

purposes because she had not named the county in the complaint. Id. at 521. Similarly, in Dumas,

the county and the state (with the exception of the county personnel board) had not been made

defendants in the plaintiff's suit against the town. 612 F.2d at 976. Looking at Dumas through

Rogero 's lens, we conclude that the Dumas court most likely declined to aggregate employees

because the plaintiff had failed to name the proper defendants. Accordingly, because treating public

and private employers alike comports with Title VII and because Dumas is not to the contrary, we

7
In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir.1981) (en banc), this court
adopted as binding precedent all decisions of the former Fifth Circuit handed down prior to
October 1, 1981.

7
hold that the NLRB factors must inform a court's inquiry when a plaintiff alleges that multiple

governmental entities acted as a single employer and in a discriminatory fashion.

Applying the NLRB factors to the present case, we conclude that Lyes presented sufficient

evidence to create a genuine issue of fact that the City and the CRA are a single Title VII

"employer"; thus, the district court's jurisdictional dismissal was in error. First, Lyes presented

significant evidence that the CRA and the City have interrelated operations. Specifically, the record

contains: (1) minutes of the CRA Board meeting considering Crilly's appointment as Executive

Director, at which one Commissioner describes the hire as "essentially a "promotion from within'

"; (2) CRA bylaws stating that the CRA "Executive Director shall report to the City Manager" and

"prepare Agency agendas with coordination of [the] City Manager";8 (3) an advertisement for the

City Manager's job, seeking an applicant with "experience in directing departments of a full service

municipality and Community Redevelopment Agency"; and (4) a performance review of Lyes by

Smith on a City form, listing the CRA as a department of the City. Further, Lyes directs us to the

Florida statutes that divide redevelopment responsibilities between municipal governments and

redevelopment authorities. See Fla. Stat. Ann. §§ 163.358, 163.370. Appellees argue, consistent

with the district court's order, that the operations of the CRA and the City are not interrelated

because the entities have separate bank accounts, offices, and records, and because Florida law

describes a redevelopment authority as "a legal entity, separate, distinct, and independent from the
governing body of the county or municipality." Id. § 163.357(1)(b). We agree that these facts are

relevant, but they do not erase the fact question created by Lyes's evidence of interrelation.

8
The parties introduced different versions of the CRA bylaws. In appellees'
submission—which bears the notation "Revised 11/17/93"—neither of the references to the City
Manager's role vis-a-vis the Executive Director appears. Because these amendments seem to
have been adopted after Lyes had filed her second EEOC charge and only a month before her
termination, we consider the former bylaws as probative evidence of the workings of the entity
which discharged Lyes. We also note that the timing is somewhat suspicious; the change
occurred within three months of the City's first notice that it was a potential defendant.

8
 Second, and most importantly,9 Lyes has introduced evidence of centralized control of labor

relations sufficient to survive summary judgment. Citing the CRA's bylaws, the district court

concluded, and appellees argue here, that the CRA Executive Director is solely responsible for

hiring and supervising agency staff.10 Lyes introduced evidence contrary to appellees' contention.

For one, the CRA's bylaws only recently gave the Executive Director sole responsibility for hiring

and firing; it appears that the Executive Director reported to the City Manager until one month prior

to Lyes's dismissal. See note 8, supra. In addition, the fact that Crilly requested the City's personnel

director to review his discipline towards Lyes11 and the fact that the City attorney acted as a hearing

officer when the CRA Board considered Lyes's request for reinstatement both point to City control

of labor relations.

Third, it cannot be doubted that the CRA and the City share common management. The

same five people serve on the City Council and the CRA Board, the policy-making bodies of both

entities. Moreover, for a year and a half, Tony Smith served as both City Manager and CRA

Executive Director. The district court, however, concluded that it was unclear that the City and the

CRA are commonly managed, again citing the statutory provision that declares redevelopment

agencies to be separate and independent. But legislative declarations do not change the facts; these

entities are managed commonly.12

9
Courts often have noted that this factor should be weighed more heavily than others. See
LINDEMANN & GROSSMAN, supra, at 1310 (collecting cases).
10
Appellees also rely on Crilly's employment contract, which provides that he serves at the
pleasure of the CRA Board. This proof is only marginally helpful; it says simply that Crilly's
employment conditions are controlled by the CRA, but says nothing about the CRA staff in
general or Lyes in particular.
11
The district court's disposal of this evidence was inappropriate on summary judgment. It
stated, "[t]hat a City employee approved a CRA disciplinary action ... is not convincing evidence
that the City has substantial control over CRA employees." Lyes v. City of Riviera Beach, No.
95-8285-CIV-RYSKAMP, slip op. at 18 (S.D.Fla.1996) (emphasis added). The court erred in
weighing the evidence beyond what was necessary—determining whether a fact question
existed.
12
Indeed, the Florida Attorney General has recognized that this statute is not talismanic; in an
unrelated context, he acknowledged the statute but opined: "the Miami Beach Redevelopment

9
 Finally, Lyes has introduced ample evidence that the CRA is fiscally dependent on the City.

The CRA lacks independent revenue-raising power; instead, the relevant taxing authorities (both

city and county) pay a portion of their revenues to the CRA. Accordingly, the CRA receives

two-thirds of its budget from City taxes. Lyes also points out that the City made an interest-free loan

to the CRA, and we take notice of the Florida statutes permitting the City to provide further funds

to the CRA. See Fla. Stat. Ann. § 163.358(3) (governing body may authorize issuance of revenue

bonds for redevelopment activities); id. § 163.356(3)(d) (governing body may appropriate to

redevelopment agency sufficient funds for operating expenses).

The totality of the circumstances thus indicates that genuine questions of fact remain as to

whether or not the CRA and the City have sufficiently overlapping operations so as to be considered

a single employer. Consequently, we must reverse the district court's summary judgment to the

contrary.

B.

In the district court, Lyes sought relief under 42 U.S.C. § 1983, alleging unconstitutional

gender discrimination in public employment. Although she invoked the Fourteenth Amendment,

Lyes did not specifically style this claim as one to vindicate her rights under the Equal Protection

Clause. This pleading oversight led the district court to analyze her constitutional argument in light

of our due process precedent alone. In her appellate brief, however, Lyes labels her claim
appropriately.13 We must decide whether Lyes's pleadings were sufficient to give appellees and the

court notice of an equal protection claim, thus necessitating remand. We conclude that they were.

Lyes's complaint contains numerous allegations consistent with an equal protection cause

of action. Most strikingly, Lyes claims that she was told outright that she was not promoted because

of her gender. Moreover, Count III of the complaint alleged: (1) "It has been the policy and custom

Agency is an agency of the City of Miami Beach and not a juristic entity which is legally
separate and distinct from the city...." Op. Fla. Atty. Gen. 82-5 (Feb. 4, 1982) (internal
quotations omitted).
13
Appellant's Br. at 46.

10
of Defendants ... acting individually and in their official capacities, to discriminate against female

employees"; (2) "Defendants ... have implemented this policy and custom of keeping females out

of management positions by not selecting Plaintiff for the position of Executive Director"; (3)

"Defendants' action constituted sexual discrimination of Plaintiff, violation of her Civil Rights, her

due process of law, and constituted a deprivation of her rights, privileges and immunities"; (4) "The

sexually discriminatory acts of Defendants and their refusal to follow departmental standards and

procedures for hiring ... were actions under the color, regulations, customs, and usages of the State

of Florida"; (5) "The actions subjected Plaintiff ... to the deprivation of rights ..., to wit: Plaintiff's

right under § 1983 ... to be free from discrimination in employment and to be protected by due

process of law."14 The portion of Lyes's complaint devoted to 42 U.S.C. § 1985(3) also charged the

same defendants with conspiring to discriminate against her in violation of the Equal Protection

Clause. In view of these allegations, we conclude that the complaint was factually detailed enough

to give appellees a strong indication that equal protection was at issue, even if the legal theory was

inarticulately expressed. See Luckett v. Rent-A-Center, Inc., 53 F.3d 871, 873 (7th Cir.), cert.

denied, --- U.S. ----, 116 S.Ct. 420, 133 L.Ed.2d 337 (1995) ("Complaints need not plead legal

theories."); Bramlet v. Wilson, 495 F.2d 714, 716 (8th Cir.1974) ("[A] complaint should not be

dismissed merely because a plaintiff's allegations do not support the particular legal theory he

advances, for the court is under a duty to examine the complaint to determine if the allegations
provide for relief on any possible theory.").

Our inquiry does not end, however, with a determination that the complaint provided

adequate notice to the appellees of an equal protection claim. Because the district court granted

summary judgment after allowing the parties further to refine their arguments, as opposed to

dismissing Lyes's complaint, we must ask, in light of the pleadings before the district court on

summary judgment, whether Lyes sufficiently expressed her equal protection theory to the court.

See Adams v. James, 784 F.2d 1077, 1081 (11th Cir.1986) (remanding after summary judgment

14
Plaintiff's Amended Verified Complaint at 15-17.

11
where appellants identified actionable theory on appeal and the "pleadings [were] broad enough to

encompass such a theory"). Indeed, "[t]here is no burden upon the district court to distill every

potential argument that could be made based upon the materials before it on summary judgment.

Rather, the onus is upon the parties to formulate arguments; grounds alleged in the complaint but

not relied upon in summary judgment are deemed abandoned." Resolution Trust Corp. v. Dunmar

Corp., 43 F.3d 587, 599 (11th Cir.) (citation omitted), cert. denied, --- U.S. ----, 116 S.Ct. 74, 133

L.Ed.2d 33 (1995); see also Road Sprinkler Fitters Local Union No. 669 v. Independent Sprinkler

Corp., 10 F.3d 1563, 1568 (11th Cir.), cert. denied, 513 U.S. 868, 115 S.Ct. 189, 130 L.Ed.2d 122

(1994) (holding that district court "could properly treat as abandoned a claim alleged in the

complaint but not even raised as a ground for summary judgment"). Nevertheless, the pleadings

before the court on summary judgment, like all pleadings, "shall be so construed as to do substantial

justice." Fed.R.Civ.P. 8(f).

Appellees, ignoring the equal protection implications of Lyes's complaint, moved for

summary judgment on the ground that Lyes did not state an actionable due process claim in light of

McKinney v. Pate, 20 F.3d 1550 (11th Cir.1994), cert. denied, 513 U.S. 1110, 115 S.Ct. 898, 130

L.Ed.2d 783 (1995). Specifically, they argued that Lyes's job was, at best, a state-created property

right, and that, after McKinney, deprivations of state-created rights do not offend the substantive

component of due process.15 Lyes responded by distinguishing McKinney as involving only a state

law claim; she claimed that, unlike herself, the plaintiff in McKinney "was not suing for a violation

of any civil rights," that is, "fundamental rights which are created only by the constitution."

Plaintiff's Response to Defendant's Motion to Dismiss at 10 (emphasis omitted). Although Lyes and

15
Appellees further argued—and the district court agreed—that any procedural due process
claim was meritless for two reasons: first, that Lyes did not have a protected property right in
her job, as she was an at-will employee; and second, that appellees gave Lyes all the process she
was due by providing her a hearing in which she could present her case. Lyes does not appeal
the district court's ruling on this issue and we therefore deem it abandoned. See Greenbriar, Ltd.
v. City of Alabaster, 881 F.2d 1570, 1573 n. 6 (1989). To the extent that Lyes continues to
maintain on appeal that appellees violated the Due Process Clause by making a false and
stigmatizing statement in the process of discharging her, we affirm the district court. See 11th
Cir. R. 36-1.

12
her counsel would have been well-served to have identified her federal civil rights claim as an equal

protection claim at this juncture, we conclude that the above-quoted statements should have alerted

the district court to her continued reliance upon an equal protection theory. Indeed, the district court

realized that Lyes opposed summary judgment because of an asserted constitutional right against

gender discrimination:

It appears that Lyes is arguing that she has a fundamental right not to be discriminated
against on the basis of her gender, and that this right rose to the level of a property interest
when she was terminated for discriminatory reasons. Lyes, however, fails in her attempt to
avoid the consequences of McKinney. The Court is not persuaded by Lyes['s] argument that
she has a recognized fundamental right not to be terminated based on her gender. Lyes
cannot take a gender based Title VII claim and transform it into a Constitutional claim by
alleging discrimination. Applying Lyes'[s] reasoning to its logical conclusion would provide
every discrimination plaintiff with an additional substantive due process claim.

Lyes v. City of Riviera Beach, No. 95-8285-CIV-RYSKAMP, slip op. at 24-25 (S.D.Fla.1996).16

The district court's rejection on summary judgment of Lyes's claim under a due process rubric was

overly formalistic. Not only did the factual allegations of Lyes's complaint invoke equal protection,

but her continued reference to due process should not have been viewed as fatal to an equal

protection claim, as "the concepts of equal protection and due process, both stemming from our

American ideal of fairness, are not mutually exclusive." Bolling v. Sharpe, 347 U.S. 497, 499, 74

S.Ct. 693, 694, 98 L.Ed. 884 (1954). Consequently, the district court, understanding that Lyes

alleged a constitutional right to be free from gender discrimination, should have considered whether

Lyes stated an equal protection claim.
We therefore conclude that Lyes's complaint and responsive pleadings, although far from a

model of clarity, sufficiently notified appellees and the district court that she was challenging her

termination on an equal protection theory. Accordingly, the district court on remand should analyze

Lyes's equal protection claim to determine if summary judgment is proper.

C.

16
We expressly reject the district court's apparent assumption that Title VII is an exclusive
remedy for discrimination by state and municipal employers. We have assumed otherwise in our
prior cases. See Cross v. State of Ala., 49 F.3d 1490, 1507 (11th Cir.1995) (allowing parallel
section 1983 and Title VII claims in public employment context).

13
 Lyes also alleged that appellees conspired to deprive her of her equal protection rights in

violation of 42 U.S.C. § 1985(3) by denying her the Executive Director's job and eventually

terminating her. The district court denied relief because neither the Supreme Court17 nor this circuit

has ever addressed whether gender-based conspiracies are actionable under 42 U.S.C. § 1985(3) and

because it was disinclined to "broaden what is actionable under § 1985(3) to include gender based

claims."18 The district court did not, however, consider whether there was reason to believe that the

statute itself encompasses gender discrimination. Because we conclude that the language, history,

and judicial interpretations of section 1985(3) all indicate that conspiracies to discriminate based on

sex are actionable, we reverse the district court.19

We begin with the statute's plain language. Section 1985(3) provides:

If two or more persons in any State or Territory conspire or go in disguise on the highway
or on the premises of another, for the purpose of depriving, either directly or indirectly, any
person or class of persons of the equal protection of the laws, or of equal privileges and

17
The Supreme Court has reserved the question of section 1985(3)'s application to
gender-based conspiracies. Bray v. Alexandria Women's Health Clinic, 506 U.S. 263, 269, 113
S.Ct. 753, 759, 122 L.Ed.2d 34 (1993). A number of Justices, however, have had occasion to
express their view on the issue. See id. at 295, 113 S.Ct. at 772 (Souter, J., concurring in part,
dissenting in part) (suggesting that animus requirement of section 1985(3) implicates at least
"those constitutional equal protection cases that deal with classifications calling for strict or
heightened scrutiny, as when official discriminations employ such characteristics as race,
national origin, alienage, gender, or illegitimacy"); id. at 319, 113 S.Ct. at 785 (Stevens, J.,
joined by Blackmun, J., dissenting) (gender-based conspiracies covered under section 1985(3));
id. at 349, 113 S.Ct. at 801 (O'Connor, J., dissenting) (same); Great American Federal Savings
and Loan Assn. v. Novotny, 442 U.S. 366, 389 n. 6, 99 S.Ct. 2345, 2358 n. 6, 60 L.Ed.2d 957
(1979) (White, J., joined by Brennan and Marshall, JJ., dissenting) (same).
18
Lyes, slip op. at 31.
19
We note that only one element—whether gender-based animus can trigger section 1985(3)'s
protection—of Lyes's cause of action is involved in the present appeal. To succeed on remand
Lyes must still prove:

(1) a conspiracy, (2) for the purpose of depriving, either directly or indirectly, any
person or class of persons of the equal protection of the laws, or of equal
privileges and immunities under the laws; and (3) an act in furtherance of the
conspiracy, (4) whereby a person is either injured in his person or property or
deprived of any right or privilege of a citizen of the United States.

Childree v. UAP/GA CHEM, Inc., 92 F.3d 1140, 1146 (11th Cir.1996), cert. denied, ---
U.S. ----, 117 S.Ct. 1080, 137 L.Ed.2d 216 (1997).

14
 immunities under the laws ..., the party so injured or deprived may have an action for the
recovery of damages occasioned by such injury or deprivation, against any one or more of
the conspirators.

The statute on its face does not exclude women from its coverage. Rather, the section's use of the

phrase "equal protection of the laws," enacted only three years after the Fourteenth Amendment was

ratified with identical language, see U.S. CONST. amend. XIV, § 1, suggests that the enacting

Congress intended section 1985(3)'s coverage to track Fourteenth Amendment jurisprudence, which

now views women as a protected class. Craig v. Boren, 429 U.S. 190, 198, 97 S.Ct. 451, 457, 50

L.Ed.2d 397 (1976). As the Second Circuit has noted, "[b]y its very language § 1985(3) is

necessarily tied to evolving notions of equality and citizenship." New York State Nat'l Org. for

Women v. Terry, 886 F.2d 1339, 1359 (2d Cir.1989), cert. denied, 495 U.S. 947, 110 S.Ct. 2206, 109

L.Ed.2d 532 (1990).

The legislative history of section 1985(3) also does not warrant a restrictive view of the

classes protected by the provision. The members of the 42d Congress may not have had the

protection of women foremost in their minds when enacting the provision that became section

1985(3), but neither did they endeavor to limit the statute's scope. As Senator Edmunds, the floor

manager for the bill remarked, a conspiracy would be actionable if "it should appear that [the]

conspiracy was formed against [a] man because he was a Democrat, if you please, or because he was

a Catholic, or because he was a Methodist, or because he was a Vermonter...." CONG. GLOBE, 42d

Cong., 1st Sess. 567 (1871). More to the point, a member of the House observed that the bill was

intended for all Americans: "It is not to protect Republicans only in their property, liberties, and

lives, but Democrats as well, not the colored only, but the whites also; yes, even women and

children...." Id. at App. 190 (statement of Rep. Buckley). Thus, although "it is a close question

whether § 1985(3) was intended to reach any class-based animus other than animus against Negroes

and those who championed their cause," United Bhd. of Carpenters & Joiners of Am., Local 610 v.

Scott, 463 U.S. 825, 836, 103 S.Ct. 3352, 3360, 77 L.Ed.2d 1049 (1983), the legislative history is

15
consistent with a view of the statute as imposing liability for conspiracies beyond those based on

race.

Similarly, the judicial gloss that the statute has acquired since its enactment leads us to

conclude that women are a class protected by section 1985(3). The Supreme Court has stated that

the provision's "language requiring intent to deprive of equal protection, or equal privileges and

immunities, means that there must be some racial, or perhaps otherwise class-based, invidiously

discriminatory animus behind the conspirators' action." Griffin v. Breckenridge, 403 U.S. 88, 102,

91 S.Ct. 1790, 1798, 29 L.Ed.2d 338 (1971) (emphasis in original). Persons alleging a gender-based

conspiracy easily satisfy this condition. It is now beyond cavil that intentional discrimination based

on sex, "an immutable characteristic determined solely by the accident of birth," Frontiero v.

Richardson, 411 U.S. 677, 686, 93 S.Ct. 1764, 1770, 36 L.Ed.2d 583 (1973), is unconstitutionally

invidious. See, e.g., id. at 686-87, 93 S.Ct. at 1770-71 ("statutory distinctions between the sexes

often have the effect of invidiously relegating the entire class of females to inferior legal status

without regard to the actual capabilities of its individual members").20 Accordingly, seven courts

20
An additional burden on section 1985(3) plaintiffs is not present in the instant case. "A §
1985(3) private conspiracy ... requires an intent to deprive persons of a right guaranteed against
private impairment." Bray v. Alexandria Women's Health Clinic, 506 U.S. 263, 274, 113 S.Ct.
753, 762, 122 L.Ed.2d 34 (1993). That is, where the plaintiff alleges that private persons
conspired to deprive him or her of a constitutional right, he or she must also establish that the
right in question is one that the individual possesses against the world at large, not simply
against the government. See United Bhd. of Carpenters, 463 U.S. at 831-33, 103 S.Ct. at 3357-
59 (equal protection and free speech rights exist against the government; wholly private
conspiracy to deprive persons of such rights not actionable). In this case, however, Lyes alleges
that public officials conspired to deprive her of her Fourteenth Amendment rights, so the Bray
/Carpenters limitation does not apply.

16
of appeals21 have held that section 1985(3) embraces suits premised on gender-based conspiracies.
We do likewise.

III.

Accordingly, we REVERSE the order of the district court, save for those issues discussed

in note 15, supra, which we AFFIRM. This case is REMANDED to the district court for

proceedings consistent with this opinion.

EDMONDSON, Circuit Judge, concurring in part and dissenting in part:

I dissent on each issue, except I concur in the result on the section 1983 claim and on the Due

Process claim discussed in footnote 15.

21
See Libertad v. Welch, 53 F.3d 428, 449 (1st Cir.1995); National Org. for Women v.
Operation Rescue, 914 F.2d 582, 585 (4th Cir.1990), rev'd in part, vacated in part on other
grounds sub nom., Bray v. Alexandria Women's Health Clinic, 506 U.S. 263, 113 S.Ct. 753, 122
L.Ed.2d 34 (1993); New York State Nat'l Org. for Women v. Terry, 886 F.2d 1339, 1359 (2d
Cir.1989), cert. denied, 495 U.S. 947, 110 S.Ct. 2206, 109 L.Ed.2d 532 (1990); Volk v. Coler,
845 F.2d 1422, 1434 (7th Cir.1988); Life Ins. Co. of N. Am. v. Reichardt, 591 F.2d 499, 505 (9th
Cir.1979); Novotny v. Great Am. Fed. Sav. & Loan Ass'n, 584 F.2d 1235, 1243-44 (3d
Cir.1978), vacated on other grounds, 442 U.S. 366, 99 S.Ct. 2345, 60 L.Ed.2d 957 (1979);
Conroy v. Conroy, 575 F.2d 175, 177 (8th Cir.1978). See also Haverstick Enters., Inc. v.
Financial Fed. Credit, Inc., 32 F.3d 989, 994 (6th Cir.1994) (dicta) (suggesting gender is
covered).

Two Circuits have suggested that section 1985(3) is limited to race-based
conspiracies, but did so in cases where a gender-based conspiracy was not at issue. See
Deubert v. Gulf Fed. Sav. Bank, 820 F.2d 754, 757 (5th Cir.1987) (whistleblowers);
Wilhelm v. Continental Title Co., 720 F.2d 1173, 1176 (10th Cir.1983), cert. denied, 465
U.S. 1103, 104 S.Ct. 1601, 80 L.Ed.2d 131 (1984) (disabled persons). We also have
expressed doubt about the breadth of the provision based on the Supreme Court's
Novotny decision, where the Court held that rights created by Title VII could not form the
basis of a section 1985(3) claim, in part because suing under 1985(3) would allow
plaintiffs to dodge the procedural requirements in Title VII. Faucher v. Rodziewicz, 891
F.2d 864, 871 n. 4 (11th Cir.1990). Because it is now evident, however, that Title VII
and the civil rights statutes may provide separate remedies for discrimination in the
public sector workplace, Cross v. State of Ala., 49 F.3d 1490, 1507 (11th Cir.1995), our
concern in Faucher evaporates.

17