Arrington v. Cobb County

PUBLISH

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

_______________

No. 96-9114
_______________
D. C. Docket No. 1:95-CV-351-WCO

NANCY ARRINGTON,

Plaintiff-Appellant,
versus

COBB COUNTY, ROBERT HIGHTOWER, in His Official Capacity as Director
of Cobb County’s Public Safety Commission, NATHAN WILSON, in His
Official Capacity as Fire Chief of Cobb County’s Department of Fire
and Emergency Service,

Defendants-Appellees.

______________________________

Appeal from the United States District Court
for the Northern District of Georgia
______________________________
(April 24, 1998)

Before TJOFLAT, BIRCH and MARCUS*, Circuit Judges.

BIRCH, Circuit Judge:

In this appeal, we determine whether material questions of fact

exist with regard to plaintiff-appellant Nancy Arrington’s gender

*
Honorable Stanley Marcus, U.S. District Judge of the Southern
District of Florida, sitting by designation as a member of this
panel when this appeal was argued and taken under submission. On
November 24, 1997, he took the oath of office as a United States
Circuit Judge of the Eleventh Circuit.
discrimination claims against defendant-appellees Cobb County,

Robert Hightower, and Nathan Wilson. The district court granted

summary judgment in favor of appellees after finding that Arrington

had failed to show that she had been discriminated against on the

basis of her gender. For the reasons that follow, we REVERSE.

I. BACKGROUND

From 1984 to 1994, Arrington held the job of Assistant Fire

Chief for the Cobb County Fire Department. In 1994, however,

appellees eliminated the Assistant Fire Chief position and demoted

Arrington to Lieutenant. This case stems from appellees’ decision

to demote Arrington rather than to promote her to Fire Chief or

transfer her to Deputy Chief. Because this appeal is from the district

court’s grant of summary judgement, we view the facts in the light

most favorable to Arrington. See Southpace Properties, Inc. v.

Acquisition Group, 5 F. 3d 500, 504 (11th Cir. 1993).

2
 Prior to her demotion in 1994, Arrington served for over twenty

years in a variety of roles within the Cobb County Fire Department.

Although County rules during the 1970's prohibited women from

becoming firefighters, Arrington joined the Department in 1971 as a

secretary, later receiving promotions to Fire Prevention Officer

(1978-79) and Fire Lieutenant in charge of Fire Prevention (1979-

84). When Cobb County lifted its prohibition on female firefighters

in 1980, Arrington became a certified firefighter but never took an

active firefighting position.

In 1984, Arrington won promotion to the position of Assistant

Chief for Administration after submitting to a competitive

examination.1 In choosing Arrington over three other candidates for

the Assistant Chief position, Fire Chief W. D. Hilton relied on

Arrington’s “performance on the examination, her excellent job

performance . . . and her knowledge of fire department operations

1
During Arrington’s decade in this position, her title took
various forms, including Assistant Director, Administration. For
the sake of clarity and convenience, we refer to her position
throughout as “Assistant Chief for Administration.”

3
and administration.” R2-26 Exh. A ¶ 10 at 3 (Hilton Aff.).2 Hilton

promoted Arrington to Assistant Chief with the concurrence of the

County Manager and the Civil Service Board.

In her position as Assistant Chief for Administration, Arrington

had a number of official responsibilities. As the chief administrator

for the Department, Arrington supervised and assessed all six of the

Department’s Colonels, who regularly reported to Arrington

regarding their respective “Training,” “Extinguishment,” “Fire

Marshal,” “Budget,” “Research and Development,” and “Building and

Fleet Maintenance” responsibilities. In addition, Arrington assisted

Chief Hilton in preparing and presenting the Department’s budgets,

wrote technical reports, met with the County Manager and County

Board of Commissioners, and spoke to other professional and

community groups. Further, Arrington managed a variety of the

2
Appellees state throughout their brief that Arrington did not
compete for her position, without ever citing us to Chief Hilton’s
sworn statement describing her promotion and refuting appellees’
assertion. Appellees would have been better served, on this and
other factual points, to have brought all of the relevant evidence
in the record to our attention.

4
Department’s special projects. In 1985, for example, Arrington

oversaw the development of an Emergency Medical Services (EMS)

program that soon “was reputed to be the best in the State and one

of the best in the Southeast.” Id. ¶ 12 at 4. Similarly, Arrington lead

the Department’s successful 1988 effort to reduce its insurance

classification, assisting the Department’s cause “greatly” with her

“knowledge of all aspects of firefighting, including administrative and

operations knowledge.” Id. ¶ 15 at 5. At the same time, Arrington

was responsible for “a territory equal to [that of] other management

staff members to be on call for major fires and emergencies.” Id. ¶

21 at 7.

Beyond her official portfolio, Arrington also assumed a broad

range of additional responsibilities during her tenure as Assistant

Chief. Although the County technically had an Assistant Chief for

Operations, H. K. Nixon, a management study of the Department

found in 1992 that Arrington was functioning as Chief Hilton’s

second-in-command for operations as well as administration:

5
 The Assistant Director, Administration [Arrington] is
performing outside the boundaries of the job description
as it was originally designed. The current incumbent is
performing administrative and operational decisions . . . .
....
The job description is written for management of the
“Administrative Services Division.” However, the current
incumbent is serving as second in command and
assisting in supervising and controlling all activities of the
Fire Department (i.e., supervising/managing line and staff
colonels). These are responsibilities of the Assistant
Director, Operations’ job description.

R2-26 Exh. C at 2, 6.3 In response to this report, Chief Hilton

wrote to the County Manager not only that he agreed that

Arrington had assumed an operations-related role beyond her

title, but also that he intended to expand her official job

description to encompass the duties of the Assistant Chief for

Operations (once Nixon retired). See R2-26 Exh. D. In fact,

Chief Hilton has explained that he consciously made Arrington

the de facto head of the Department upon his becoming

President of the International Association of Fire Chiefs in

3
This management audit was conducted by the County’s Personnel
Department, rather than by officials from within the Fire
Department.

6
1990. See R2-26 Exh. A ¶ 17 at 6 (Hilton Aff.) (“In my absence

Assistant Chief Arrington performed the duties of Fire Chief

and ran the department for me.”).4

Moreover, all of the evidence before the court indicates

that Arrington excelled as Assistant Chief. Although appellees

insist throughout their brief that Arrington had no right, as

someone who did not rise through the ranks, to hold a high

post in the Department, they have not offered any evidence

that Arrington ever performed her official or unofficial duties as

Assistant Chief in anything less than an exemplary manner.

Indeed, appellees have made no attempt to refute Chief

Hilton’s assessment that “Nancy Arrington, throughout her

tenure with the County Fire Department[,] has earned the

4
Appellees apparently do not dispute that Arrington exercised
a broad range of duties as Assistant Chief. Appellees advance no
argument or evidence undercutting the County’s report on
Arrington’s operational activities, nor do they offer any argument
or evidence contradicting Chief Hilton’s assessment of Arrington’s
role within the Department.

7
respect of her peers, her department, and fire officials

throughout the State and Country.” Id. ¶ 19 at 6.

In 1993, Chief Hilton announced his retirement (effective

in 1994) as the County moved toward a restructuring of its

public safety agencies. Central to this reorganization effort, the

County planned to bring its separate Police, Fire, and

Corrections Departments within one, consolidated Public

Safety Department, thereby reducing administrative and other

inefficiencies. Leading the County’s reorganization effort, the

newly-installed Public Safety Director, Robert Hightower, had

responsibility for selecting the County’s new Fire Chief. After

conducting a series of interviews, Hightower chose Nathan

Wilson as the new Chief, passing over Assistant Chief

Arrington and eight other candidates for the position.5 As an

experienced firefighter, Wilson had risen through the ranks of

5
Peter Fanton and Donna Carter also interviewed each of the
candidates for Fire Chief. Hightower, however, had the
responsibility for actually selecting the new Fire Chief, with the
concurrence of the Board of Commissioners.

8
the Department, from firefighter in 1965 to Colonel at the

time of his selection as Fire Chief. In explaining and

defending Wilson’s promotion over Arrington in the course of

this suit, Hightower has cited Arrington’s lack of “operational

experience” as the key element that rendered her unqualified

for the position.

Once Wilson assumed his new position as Chief, he

joined Hightower in determining how to integrate the County’s

Fire Department into the new Public Safety Department. Of

particular relevance to this case, Wilson and Hightower

decided to replace the two Assistant Fire Chief positions

(Administration and Operations) with a new, consolidated

second-in-command position of “Deputy Chief.”6 Upon the

Hightower and Wilson’s motives for this
6

element of their reorganization plan are in
dispute and are addressed below. Hightower and
Wilson contend that the new Deputy Chief position
was designed primarily as an “Operations” job,
with most of the administrative responsibilities of the
former Assistant Chief for Administration shifting to a centralized
administrative staff for the entire Public Safety Department.
Arrington, however, contends that the Deputy and Assistant Chief

9
Board of Commissioners’ acceptance of Wilson and

Hightower’s restructuring plan, Wilson chose David Hayes to

serve as the new Deputy Chief, demoting Arrington to

Lieutenant.7 Like Wilson, Hayes had risen through the ranks

from firefighter to Colonel before his most recent promotion to

Deputy Chief, and Wilson has explained and defended his

passing over of Arrington as a reflection of her lack of

“operational experience” in fighting fires.8

Following her demotion, Arrington brought suit against the

County, Hightower, and Wilson in the district court.

Specifically, Arrington alleged that appellees had discriminated

jobs are essentially the same, and that appellees used the ongoing
restructuring effort to replace her with Hayes, discriminating
against her on the basis of her gender.
7
Hightower and Fenton also participated in interviewing the
candidates for Deputy Chief, but it was Wilson who actually
selected Hayes for the job. The County’s civil service law
required Arrington’s demotion to her last previous rank
(Lieutenant) upon the County’s elimination of her Assistant Chief
position.
8
Furthermore, Cobb County, Hightower, and Wilson have insisted
before this court that Arrington was not even qualified for her
former Assistant Chief position, though they offer no evidence to
support this assertion.

10
against her on the basis of her gender in (1) denying her the

Fire Chief position, (2) denying her the Deputy Chief position,

and (3) demoting her to Lieutenant, in violation of Title VII of

the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq, and the

equal protection clause of the Fourteenth Amendment

(enforced through 42 U.S.C. § 1983). Further, Arrington

claimed that the appellees had violated the Equal Pay Act, 29

U.S.C. § 206(d), by (1) paying her alleged “successor” Hayes

a higher salary as Deputy Chief than she had received for her

“substantially equal” work as Assistant Chief and (2) paying her

less as a Lieutenant than her male Lieutenant peers.

After appellees moved for summary judgment, the district

court assigned the case to a magistrate judge for evaluation.

In a Report & Recommendation (“R & R”), the magistrate judge

suggested that the district court: (1) grant summary judgment

in favor of appellees on Arrington’s Title VII “Fire Chief” claim,

because Arrington had failed to file a timely EEOC charge

11
regarding the appellees’ failure to promote her to that position;

(2) grant summary judgment in favor of appellees on

Arrington’s § 1983 Fire Chief equal protection claim, based on

the same untimeliness rationale; (3) proceed to trial on

Arrington’s Title VII and § 1983 claims regarding the Deputy

Chief position, on the ground that material issues of fact

existed with regard to Arrington’s qualifications for that

position;9 (4) grant summary judgment on behalf of appellees

on Arrington’s claims of discriminatory demotion to Lieutenant,

on the ground that the County’s civil service law required her

demotion to her previous rank (Lieutenant) upon the elimination

of her job as Assistant Chief; (5) deny summary judgment on

Arrington’s Equal Pay Act claim of discrepancy between

Deputy Chief Hayes’s salary and her former salary as Assistant

Chief, because of disputed material facts; and (6) grant

summary judgment on behalf of appellees on Arrington’s Equal

9
Unlike Arrington’s Title VII Fire Chief claims, her Title VII
Deputy Chief claims have not suffered from any timeliness problems.

12
Pay Act claim regarding alleged discrepancies between her

current pay and that of other Lieutenants, because any

inequalities regarding Arrington’s current pay were required by

the County’s even-handed civil service rules.

Following the magistrate judge’s initial R & R, Arrington

objected to the district court that the timing of her EEOC

complaint was irrelevant to her § 1983 claim for violations of

her constitutional right of equal protection. Subsequently, the

magistrate judge submitted a Supplemental R & R (“SR & R”)

addressing Arrington’s concerns. In this SR&R, the magistrate

judge agreed with Arrington that her § 1983 Fire Chief claim

could not be dismissed on the basis of her untimely EEOC

charge. Upon reaching the merits of Arrington’s § 1983 Fire

Chief claim, however, the magistrate judge found, sua sponte,

that there was no evidence that the County had any “policy” or

“custom” of gender discrimination that might have caused

Arrington to be denied the Fire Chief position. Relying on

13
Monell v. Dep’t of Soc. Serv., 436 U.S. 658, 98 S. Ct. 2018, 56

L. Ed. 2d 611 (1978), and its progeny, the magistrate judge

therefore again recommended that the district court grant

summary judgment against Arrington on her Fire Chief claims

against the County and Hightower.10 In response to the

magistrate judge’s SR&R, Arrington agreed that Monell

required the district court to dismiss her § 1983 Fire Chief claim

against the County but objected to the magistrate judge’s

unexplained additional recommendation of dismissal against

Hightower, who Arrington insisted she was suing in his

personal capacity as well as in his official capacity. Arrington

did not object to the magistrate judge’s recommendation for

summary judgment against her on her Title VII Fire Chief

claims, her § 1983 Fire Chief claim against the County, her

discriminatory demotion claims, or her Equal Pay Act claim

10
We note that no Monell issue has arisen with regard to
Arrington’s § 1983 Deputy Chief claims. On remand, the district
court may wish to consider whether to apply Monell to Arrington’s
§ 1983 Deputy Chief claims.

14
concerning alleged inequalities between herself and her

Lieutenant peers.

Despite the magistrate judge’s recommendation that the

district court proceed to trial on several of Arrington’s

allegations, the district court granted summary judgment for

appellees on all of Arrington’s claims. On Arrington’s § 1983

Fire Chief claim against Hightower, the district court held that

its judgment against Arrington on her Title VII Fire Chief claims

(because of her untimely EEOC charge) required it to grant

summary judgment also against Arrington on all of her § 1983

Fire Chief claims, lest Arrington use § 1983 to circumvent the

administrative requirements for Title VII actions. On Arrington’s

Deputy Chief claims, the district court ruled that Arrington had

established a prima facie case of sex discrimination under

McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct.

1817, 36 L. Ed. 2d 668 (1973). Nonetheless, the district court

granted summary judgment for appellees because it found that

15
Arrington had produced no evidence that appellees’ proffered

legitimate, nondiscriminatory reason for their actions (i.e.,

Arrington’s lack of “operational experience”) masked an illegal

motive. Finally, on Arrington’s remaining Equal Pay Act claim,

the court granted summary judgment for appellees because it

found that the positions of “Deputy Chief” and “Assistant Chief

for Administration” were not substantially equal.

II. DISCUSSION

Summary judgment is only appropriate where there are no

genuine issues of material fact and the moving party is entitled

to judgment as a matter of law. See Fed. R. Civ. P. 56 (c). In

reviewing the district court’s grant of summary judgment, we

review both its factual findings and its legal reasoning de

novo. See, e.g., Combs v. Plantation Patterns, 106 F.3d

1519, 1526 (11th Cir. 1997), cert. denied sub nom., Combs

v. Meadowcraft, __ U.S., __, __ S. Ct. __, __ L. Ed. 2d __

16
(1998).11 We view the evidence in the light most favorable to

the non-moving party, using the same legal standards

appropriate for the district court. See id. In this appeal,

Arrington contests the district court’s grant of summary

judgment for appellees on (1) her § 1983 Fire Chief claim

against Hightower, (2) her Title VII and § 1983 Deputy Chief

claims against all three appellees, and (3) her Equal Pay Act

claim against all three appellees regarding salary disparity

between the Deputy and Assistant Chief positions. We

address each of Arrington’s bases for appeal in turn.

A. THE FIRE CHIEF POSITION

The district court granted summary judgment on

Arrington’s § 1983 claims for significantly different reasons

from those recommended by the magistrate judge in its SR &

11
Appellees’ assertion that we should subject the factual
findings of the district court only to a clearly erroneous standard
of review finds no support in the precedents of this court. We
find appellees’ inability to discuss even the standard of review in
a straightforward and forthcoming manner to be disheartening.

17
R. Instead of relying on a Monell finding that the County did

not have a “policy” or “custom” of discrimination, the district

court based its ruling on the principle that a plaintiff may not

use § 1983 to circumvent the administrative requirements for

a Title VII claim. On appeal, Arrington argues that the district

court erred because her § 1983 claim is based on a violation of

her constitutional equal protection rights and not on any

statutory violation of Title VII.

To prevail on a claim under § 1983, a plaintiff must

demonstrate both (1) that the defendant deprived her of a right

secured under the Constitution or federal law and (2) that such

a deprivation occurred under color of state law. See Willis v.

University Health Serv., 993 F.2d 837, 840 (11th Cir. 1993). Of

course, an allegation of a Title VII violation cannot provide the

sole basis for a § 1983 claim. See Allen v. Denver Pub. Sch.

Bd., 928 F.2d 978, 982 (10th Cir. 1991) (“[S]ection 1983 cannot

be used to assert the violation of rights created only by Title

18
VII.”); Hervey v. City of Little Rock, 787 F.2d 1223, 1233 (8th

Cir. 1986) (same). As the district court observed, a plaintiff

cannot bootstrap an untimely Title VII claim by bringing a §

1983 action based only on a statutory violation of Title VII. Cf.

Great Am. Fed. Sav. & Loan Assoc. v. Novotny, 442 U.S. 366,

375-78, 99 S. Ct. 2345, 2350-52, 60 L. Ed. 2d 957 (1979)

(stating that plaintiffs may not bypass the Title VII

administrative process by enforcing their statutory rights under

Title VII through § 1985). Arrington, however, does not rest her

§ 1983 Fire Chief claim on any alleged violation of Title VII.

Instead, Arrington satisfies the first element of § 1983 by

alleging that Hightower violated her Fourteenth Amendment

right of equal protection. See Johnson v. City of Fort

Lauderdale, 114 F.3d 1089, 1092 (11th Cir. 1997), reh’g en

banc denied, 124 F.3d 1372 (1997) (holding that Title VII does

not preempt a Fourteenth Amendment cause of action for

employment discrimination under § 1983); Hervey, 787 F.2d at

19
1233 (holding that a plaintiff whose Title VII claim is time-

barred is “limited to proving that the [defendant] violated her

equal protection rights under the fourteenth amendment in

order to recover under § 1983.”).12 Thus, we conclude that the

district court erred as a matter of law by granting summary

judgment to the appellees on this issue.13 Accordingly, we

reverse the district court’s grant of summary judgment on

Arrington’s § 1983 Fire Chief claim against Hightower and

12
There is no dispute that Hightower acted under the color of
state law in denying Arrington the promotion to Fire Chief,
satisfying the second element of § 1983.
13
In their brief for this court, appellees ignore the district
court’s confusion regarding the relationship between Title VII and
§ 1983; appellees strangely declare that the district court based
its decision on the merits of Arrington’s § 1983 Fire Chief claim.
Appellees’ contention that the district court reached the merits of
this issue is, at best, misleading. Because the district court did
not discuss the magistrate judge’s decision on the merits of
appellants’ § 1983 Fire Chief claims, we decline at this stage to
evaluate the merits of Arrington’s remaining Fire Chief claim
against Hightower. We note, however, that Arrington has insisted
that she seeks to pursue Hightower in his personal capacity. Given
our liberal system of notice pleading, and appellees’ apparent
understanding throughout their submissions to the magistrate judge
and district court that Arrington sought to hold Hightower liable
in his personal as well as in his official capacity, we expect that
the district court will allow Arrington to amend her complaint as
necessary to reflect the true nature of her claims. Cf. Espanola
Way Corp. v. Meyerson, 690 F.2d 827, 829 (11th Cir. 1982) (rules of
notice pleading apply to complaints in § 1983 actions).

20
remand this issue to the district court for further proceedings

consistent with this opinion.14

B. THE DEPUTY CHIEF POSITION

Arrington argues that material questions of fact exist with

regard to her claims that appellees discriminated against her

on the basis of her gender in denying her the Deputy Chief

position. For Title VII and § 1983 gender discrimination claims,

the order and allocation of proof are well established.15 First,

the plaintiff must prove a prima facie case of discrimination by

a preponderance of the evidence. Second, if the plaintiff

makes out a prima facie case, the defendant must produce a

14
We note again that Arrington has conceded that the district
court’s judgment on her § 1983 Fire Chief claim against the County
is justified on the alternative, Monell grounds relied upon by the
magistrate judge. Arrington, therefore, has not appealed the
district court’s grant of summary judgment for the County on this
claim. On remand, the only remaining claim based on Arrington’s
failure to receive promotion to Fire Chief will be her § 1983 claim
against Hightower.
15
This framework would also apply to any evaluation of the
merits of Arrington’s § 1983 Fire Chief claim against Hightower,
discussed above.

21
legitimate, non-discriminatory reason to explain the challenged

action. Third, should the defendant carry this burden, the

plaintiff must show by a preponderance of the evidence that the

defendant’s proffered explanation was a pretext for

discrimination. See Texas Dept. of Community Affairs v.

Burdine, 450 U.S. 248, 252-53, 101 S. Ct. 1089, 1093, 67 L.

Ed. 2d 207 (1981).

Since Arrington has produced no direct evidence that

appellees’ harbored an illegal motive for refusing her the

Deputy Chief position, she must rely on the test set out in

McDonnell to establish her prima facie case of discrimination

through circumstantial evidence. Under this four-pronged test,

Arrington must show that (1) she is a member of a protected

class, (2) she applied and was qualified for the Deputy Chief

position, (3) she was rejected in spite of her qualifications, and

(4) the Deputy Chief position went to an equally or less

qualified person who was not a member of a protected class.

22
See McDonnell, 411 U.S. at 802, 93 S. Ct. at 1824; Batey v.

Stone, 24 F.3d 1330, 1334 n.11 (11th Cir. 1994).16 Plainly,

Arrington is a member of a protected group (women), did not

receive the position at issue (Deputy Chief), and lost the

position at issue to a person who was not a member of a

protected class (the new, male Deputy Chief, Hayes).

Appellees, however, argue that Arrington was not qualified

for the Deputy Chief position because she lacked the

“operational experience” necessary for the proper performance

of the job. As part of the County’s reorganization of its public

safety agencies, the appellees contend, the new Deputy Chief

must perform operational tasks formerly assigned to the

Assistant Chief for Operations, while the administrative duties

of the former Assistant Chief for Administration have been

largely reassigned to the Public Safety Department’s central

16
Although the McDonnell case concerned only Title VII, its
analytical framework for the establishment of a prima facie case of
employment discrimination applies equally to discrimination claims
brought under § 1983. See, e.g, Burns v. Gadsen State Community
College, 908 F.2d 1512, 1518 (11th Cir. 1990) (per curiam).

23
administrative office. Thus, appellees contend both that

Arrington cannot prove a prima facie case of discrimination and

that they had a legitimate, nondiscriminatory reason for

refusing to interview Arrington for the Deputy Chief position:

her lack of operational experience rendered her unqualified to

shoulder the operational responsibilities the new position

demanded.17

If Arrington had not been able to provide the district court

with additional evidence of her qualification for the Deputy

Chief position, the district court’s grant of summary judgment

against Arrington might well have been appropriate; without

more, it would seem reasonable to us that a Fire Chief might

17
In granting summary judgment for appellees, the district
court ruled that Arrington was sufficiently qualified to establish
a prima facie case. Nonetheless, the court ultimately accepted
appellees’ asserted nondiscriminatory reason for denying Arrington
the Deputy Chief position, apparently because Arrington was unable
to rebut appellees’ explanation with direct evidence that
appellees’ acted with a discriminatory motive. Given that
appellees’ asserted reason is the exact converse of one element of
a prima facie McDonnell case of discrimination, we regret that the
district court did not explain further its conclusion that
Arrington was “arguably qualified” but that there was no material
question of fact regarding appellees’ contention that she was not
qualified.

24
choose to pass over a candidate for Deputy Chief who did not

have first-hand experience fighting fires. Arrington, however,

has presented circumstantial evidence and testimony that

could lead a reasonable jury to conclude that the appellees’

explanations mask an illegitimate, discriminatory motive.

Although the appellees maintain that the job of Deputy

Chief is a new, “operational” position, Arrington’s evidence

appears to demonstrate that Deputy Chief Hayes is in fact

performing the same tasks formerly performed by Arrington as

Assistant Chief. Shortly after his promotion, Hayes filled out a

“Position Description Questionnaire” in which he detailed his

duties as Deputy Chief and the time he spent on each:

All sections except Fire Prevention and Arson answer
directly to me. As an administrative staff member I must
attend various meetings both outside and inside the
department. . . . [50%]

The Chief or I must approve all purchase requests. . . .
We monitor activities from month to month to make sure
we stay within the budgeted funds and must take

25
 corrective actions if necessary to correct overages. . . .
[8%]

The chief and I are responsible for the total preparation of
our $28,000,000 budget. This includes proposals for
new equipment or programs as well as establishing
ongoing budget proposals from existing data as well as
known factors that may influence expenditures. . . .
[5%]

I oversee the Emergency Medical Services program of the
county. . . . [20%]

I answer large or unusual fire and rescue calls on an
emergency basis. Once on the scene I assume
responsibility for the incident even if I don’t take command
of the incident. [5%]

I am responsible for the writing of many technical papers,
reports and projects for the department. . . . [10%].

From time to time I speak to various outside organizations
representing the department. . . . [1%]

I am a member of various committees or organizations
including the Cobb County Emergency Medical Services
Council, the Excel Alumni Association, and the Georgia
Firefighters Burn Foundation. [1%]

R2-26 Exh. M. Significantly, Arrington performed all of these

activities when she served as Assistant Chief. Like Deputy Chief

26
Hayes, Arrington supervised and assessed the various section

leaders within the Department, and she prepared and policed the

Department’s budgets. Like Hayes, Arrington also oversaw the

County’s EMS program; in fact, she was responsible for the

program’s creation. Moreover, Arrington, like Hayes, was on call to

take responsibility for a variety of emergency situations, and she

prepared a variety of technical papers and reports. Finally, like

Hayes, Arrington commonly represented the Department both before

the County Commission and before a variety of public and private

groups.18 Again, past and present statements by Arrington’s former

superior, former Chief Hilton, call into question appellees’

explanations for their behavior. In response to the 1992 personnel

study of the Department, for example, Hilton reported that:

18
The appellees have offered no evidence of any significant,
specific, “operational” task actually performed by the Deputy Chief
that Arrington is not at least arguably qualified to perform or
that she has not already actually performed as de facto head of the
County’s Fire Department under Chief Hilton. We also note that it
is curious that appellees believed Arrington to be sufficiently
qualified for the Fire Chief position to consider her through two
rounds of interviews, yet found her to be so lacking in
qualification for the Deputy Chief position as to be unworthy of
consideration.

27
 [Arrington] works jointly with me to provide the total fire
and EMS service to our citizens. Nothing goes out of our
building, either to our own people, interdepartment, or to
the public, without her approval. She assigns work to the
Colonels and makes decisions daily about every phase of
our service. There has to be a coordination of daily
operations and someone to keep everyone going down
the same road and out of the ditches. I depend
completely on her to do this and trust her to make any
decision necessary in my absence to carry on. She is
expected to and very often does present new programs or
better ways of doing what we do. This requires research
and heavy contact with other fire services organizations.

R2-26 Exh. D at 3. In the same vein, Hilton now states in his

affidavit that:

I concur that Nancy Arrington was performing the duties
of managing and supervising the operations side of the
Fire Department along with being responsible for the
administrative aspects of the Department. Nancy
Arrington was second in command of the entire Cobb
County Fire Department.

R2-26 Exh. A ¶ 22 at 7. Given the striking similarity between the

actual responsibilities of current Deputy Chief Hayes and former

Assistant Chief Arrington, we have difficulty finding that reasonable

minds could not differ concerning appellees’ claims that Arrington

28
was unqualified even to be interviewed for the Deputy Chief

position.19 Thus, we conclude that a jury might reasonably infer that

Arrington was qualified for the Deputy Chief position, thereby both

establishing the final element of Arrington’s prima facie case and

significantly undermining the credibility of appellees’ asserted

nondiscriminatory explanation for their actions.20

The only question remaining, then, is whether Arrington may

proceed to trial on evidence that only undermines the credibility of

appellees’ asserted reason for not considering her for the Deputy

Chief position, without directly showing that appellees harbored an

illegal motive. As this court has repeatedly held, a Title VII plaintiff

19
Significantly, appellees make no attempt to dispute any of
this evidence. Instead, appellees rely on the bald proposition
that it would be absurd for a person without actual line experience
fighting fires to become the second-in-command (let alone the
Chief) of a fire department. Although we recognize that such an
argument might ultimately persuade a jury, we must view the
evidence in the light most favorable to the non-moving party,
Arrington. From this perspective, we cannot ignore the substantial
evidence from which a jury might reasonably infer that the
appellees’ emphasis on operational experience was a pretext for
gender discrimination.
20
A plaintiff may rely on the same evidence both to establish
her prima facie case and to cast doubt on the defendant’s
nondiscriminatory explanations. See Carter v. Three Springs
Residential Treatment, No. 97-6256, Slip. Op., __ F.3d __, 1115
(11th Cir. 1998).

29
may defeat a motion for summary judgment by undermining the

credibility of a defendant’s explanation for its actions:

[P]roof that a defendant’s articulated reasons are false is
not proof of intentional discrimination; it is merely
evidence of intentional discrimination. However, evidence
of intentional discrimination is all a plaintiff needs to
defeat a motion for summary judgment. That evidence
must be sufficient to create a genuine factual issue with
respect to the truthfulness of the defendant’s proffered
explanation.

Howard v. BP Oil Co., 32 F. 3d 520, 525 (11th Cir. 1994).21 In this

case, Arrington has produced sufficient evidence undermining

appellees’ explanation for denying her the Deputy Chief position

that a reasonable jury might infer that the appellees intentionally

discriminated against Arrington, in violation of her Title VII and

equal protection rights. Both the appellees and the district court,

however, appear to have misread our precedents as to the type of

21
We understand that there may once have been some confusion
regarding our court’s precedents on this issue. See Isenbergh v.
Knight-Ridder Newspaper Sales, Inc. , 97 F.3d 436 (11 th Cir. 1996)
(criticizing Howard). Today, however, Howard clearly represents
the law in this circuit, see Combs, 106 F.3d at 1529-35 (collecting
cases), as the author of Isenbergh has subsequently acknowledged,
see Evans v. McClain of Ga., Inc., 131 F. 3d 957, 964-65 (11th Cir.
1997) (per curiam).

30
proof required of a plaintiff in a discrimination case based on

circumstantial evidence.22 In ruling for the appellees, the district

court explained that “Plaintiff has not presented any evidence to

suggest that sexual discrimination had anything to do with her not

being appointed to the position of Deputy Chief. Plaintiff’s inability

to show this is fatal to her effort to avoid a ruling of summary

judgment in favor of defendants.” R3-36 at 20. Requiring such a

direct showing of discriminatory intent from Arrington, though, would

not only contradict our precedents but would also would make it

impossible for a plaintiff to prevail on any discrimination case based

solely on circumstantial evidence. See Combs, 106 F.3d at 1536-

38. Thus, we conclude that the district court has erred both in its

assessment of the facts and in its analysis of the law, and we

reverse the district court’s grant of summary judgment against

Arrington on her Deputy Chief claims.

22
Curiously, appellees make no mention in their brief of
Howard, Combs, or any of our other precedents supporting
Arrington’s position on this issue.

31
C. THE EQUAL PAY ACT CLAIM

To establish a prima facie case under the Equal Pay Act, an

employee must show that “an employer pays different wages to

employees of opposite sexes ‘for equal work on jobs the

performance of which requires equal skill, effort, and responsibility,

and which are performed under similar working conditions.’” Corning

Glass Works v. Brennan, 417 U.S. 188, 195, 94 S. Ct. 2223, 2228,

41 L. Ed. 2d 1 (1974); Waters v. Turner, Wood & Smith Ins. Agency,

Inc., 874 F.2d 797, 799 (11th Cir. 1989). To establish a prima facie

case, a plaintiff need

only demonstrate that the jobs at issue are substantially similar; a

plaintiff does not have to show that the skills or qualifications of the

actual male and female employees holding the positions are also

substantially equivalent. See Miranda v. B & B Cash Grocery Store,

Inc., 975 F.2d 1518, 1533 (11th Cir. 1992) (“[O]nly the skills and

qualifications actually needed to perform the jobs are considered.”).

Moreover, “[t]he prima facie case . . . focuses solely on the primary

32
duties of each job, not duties that are incidental or insubstantial,”

and, although formal job titles or descriptions may be considered,

the controlling factor in the court’s assessment of whether two jobs

are substantially equal must be actual job content. See id. Finally,

a plaintiff does not have to prove that two jobs are identical but

rather must show that the “skill, effort and responsibility required in

the performance of the jobs are substantially equal.” Id. (emphasis

added) (internal quotation omitted).23

On appeal, Arrington argues that the district court erred in

concluding that no material issue of fact existed as to whether the

Deputy and Assistant Chief positions were substantially equal.

Given our comparative analysis above, we agree with Arrington that

a jury might reasonably conclude that the Deputy and Assistant

Chief positions are “substantially equal.” While appellees

emphasize Arrington’s formal job title, Arrington points to significant

23
The Equal Pay Act also clearly applies when a plaintiff
alleges an inequality between her pay and that of her successor.
See Gosa v. Bryce Hosp., 780 F.2d 917, 919 (11th Cir. 1986) (per
curiam).

33
evidence indicating that she exercised a wide range of duties as

“second in command” to former Chief Hilton, duties which very

closely track those actually performed by Deputy Chief Hayes.24 At

a minimum, Arrington has established a material question of fact

with regard to her Equal Pay Act claim.25 Thus, we reverse the

district court’s entry of judgment on this claim and remand it to the

district court for further proceedings.

24
We regret that appellees have chosen not to discuss the
various reports and affidavits upon which Arrington relies to
demonstrate the extent of her actual responsibility as Assistant
Chief. Given such unquestioned evidence, appellees’ repeated
references to Arrington’s formal job title and job description as
Assistant Chief for Administration are unpersuasive.
25
Appellees argue for the first time on appeal that no
significant disparity exists between Hayes’ salary as Deputy Chief
and Arrington’s salary as Assistant Chief. Because this argument
was not fairly before the district court, we decline to address it
here.

34
 III. CONCLUSION

The district court has committed a number of factual and legal

errors in granting summary judgment for appellees. Therefore, we

REVERSE the district court’s grant of summary judgment to

Hightower on Arrington’s § 1983 Fire Chief Claim and REMAND that

claim to the district court for further consideration consistent with this

opinion. Further, we REVERSE the district court’s grants of

summary judgment on Arrington’s Title VII and § 1983 Deputy Chief

claims, as well as on Arrington’s Equal Pay Act claim regarding her

Deputy Chief “successor,” and REMAND these claims for further

proceedings in the district court.

35