Davis v. Coca-Cola Bottling Co. Consolidated

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 05-12988 FEBRUARY 6, 2008
________________________ THOMAS K. KAHN
CLERK
D. C. Docket No. 02-00629-CV-CB-M

MELVIN DAVIS,
LEANDER FOSTER,
MICHAEL A. FOX,
RANDOLPH HATCHER,
TERRY R. JACKSON,
WARREN LAW, JR.,
ATTRESS LOGAN,
LORENZO MARTIN,
WATSON, SGT.,

Plaintiffs-Appellants,

versus

COCA-COLA BOTTLING CO. CONSOLIDATED,

Defendant-Appellee.

________________________

Appeal from the United States District Court
for the Southern District of Alabama
_________________________

(February 6, 2008)
Before TJOFLAT and PRYOR, Circuit Judges, and GEORGE*, District Judge.

TJOFLAT, Circuit Judge:

The plaintiffs in this employment discrimination case brought under Title

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

1981, are seven employees and two former employees of Coca-Cola Bottling Co.

Consolidated (“CCBCC”). In their complaint, they allege that CCBCC is

maintaining a “pattern or practice” of discrimination against them and all other

similarly situated employees on account of their race, which is black, with respect

to hiring, promotion, pay, a racially hostile workplace environment, and light work

assignments.1 After the case proceeded through several rounds of pleadings,2

*
Honorable Lloyd D. George, United States District Judge for the District of Nevada,
sitting by designation.
1
Plaintiffs’ complaint alleges “across-the-board” employment discrimination, see e.g.,
Gen. Tel. Co. of Sw. v. Falcon, 457 U.S. 147, 156-61, 102 S. Ct. 2364, 2370-72, 72 L. Ed. 2d
740 (1982), and prays for declaratory and injunctive relief, back pay, and compensatory and
punitive damages and demands a trial by jury.
2
This suit has had a convoluted history. Plaintiffs began it by filing a complaint in the
district court on August 19, 2002, while the charges of discrimination they had filed with the
Equal Employment Opportunity Commission (“EEOC”) were still pending. Their original
complaint contained the essence of the Title VII claims (which were not ripe) and the § 1981
claims now before us. Plaintiffs amended their complaint shortly after bringing suit, the
defendant moved to dismiss it pursuant to Fed. R. Civ. P. 12(c), and the court granted the motion
in part in November 2002. Nothing in the court’s order, the amended complaint, or the
defendant’s Rule 12(c) motion is germane in this appeal. On January 3, 2003, the EEOC issued
right-to-sue letters to seven of the nine plaintiffs, and on March 23, 2003, plaintiffs filed their
second amended complaint. The issues here were framed by that complaint and the defendant’s
answer. Unless otherwise indicated, the complaint we refer to in this opinion is the second
amended complaint, which we label the complaint.

2
partially dispositive rulings on motions,3 and considerable discovery, plaintiffs’

claims of race discrimination under Title VII and § 1981 boiled down to claims

that CCBCC: has a pattern or practice of subjectively hiring supervisors, in which

qualified blacks are not meaningfully considered;4 preferred whites in awarding

light work assignments; maintained a racially hostile work environment; and twice

retaliated against one of the plaintiffs for complaining about race discrimination in

the workplace.

The district court ruled on the legal sufficiency of these claims on CCBCC’s

motion for summary judgment.5 First, the court dismissed plaintiffs’ pattern or

practice claims on the ground that a pattern or practice claim is available only as a

class action and plaintiffs had not sought class certification. Next, the court

3
These motions were, in the main, CCBCC’s motions for judgment on the pleadings.
See Fed. R. Civ. P. 12(c).
4
Throughout this litigation, the parties and the district court have referred to the hiring of
supervisors as “promotions.” These employment decisions are not, either factually or legally,
promotions; they are hirings, as indicated in part I.A, infra. CCBCC hires someone – a union
member or a person from outside the company – to fill a management position that is clearly
non-union. We therefore consider, and refer to, plaintiffs’ “promotion” claims as hiring claims
brought under Title VII and § 1981.
5
The court held some of plaintiffs’ claims insufficient on CCBCC’s motions for
judgment on the pleadings, see Fed. R. Civ. P. 12(c), filed in response to plaintiffs’ complaint
and amended complaint. The complaint pertinent to this appeal is plaintiffs’ second amended
complaint. See supra note 2. We do not address these Rule 12(c) rulings because the claims
those rulings held insufficient were re-alleged in the second amended complaint and were
rejected either expressly or implicitly by the district court’s order granting CCBCC’s motion for
summary judgment.

3
granted CCBCC summary judgment on all of plaintiffs’ individual hiring and light

duty claims brought under Title VII as time-barred. Finally, the court granted

summary judgment on all of plaintiffs’ individual § 1981 claims. All but four §

1981 claims – two light duty claims and two retaliation claims – were found time-

barred. They were dismissed on the merits, for lack of proof.6

Plaintiffs now appeal, arguing that the district court erred in holding that a

pattern or practice claim (as it relates to the manner in which CCBCC hires

supervisors) must be brought as a class action. They also argue that the court

erred in dismissing their individual § 1981 claims as time-barred or for lack of

proof and all of their Title VII claims as time-barred.7 Finally, plaintiffs complain

that the court overlooked several hiring claims that were not explicitly set out in

their complaint but were called to the court’s attention in their opposition to

CCBCC’s motion for summary judgment. We affirm the district court’s judgment

with the exception of two Title VII hiring claims, which we remand for further

proceedings.

We begin by describing plaintiffs’ employment – in particular, how CCBCC

6
As explained in Part V.B.2, infra, the court dismissed one of Frederick Watson’s
retaliation claims because it was not pled in the complaint, but held alternatively that the claim
failed as a matter of law.
7
Plaintiffs do not appeal the district court’s dismissal of their hostile work environment
claims, whether brought under Title VII or § 1981, for lack of proof.

4
hired supervisors and assigned light work. We then move to the allegations of the

complaint, the district court’s summary judgment decision, and our analysis and

disposition of the issues plaintiffs raise.

I.

A.

CCBCC is a soft drink production, bottling, and distribution corporation

with operations throughout the southeast United States. Plaintiffs Melvin Davis,

Leander Foster, Michael Fox, Randolph Hatcher, Terry Jackson, Warren Law, and

Attress Logan are current employees at CCBCC’s Mobile, Alabama facility;

Frederick Watson and Lorenzo Martin are former employees.8 The employees at

the Mobile facility are assigned to divisions: production, sales, and truck

maintenance. The sales division is subdivided by types of customers and routes:

bulk, conventional, cold drink, and full-service. Most of the plaintiffs work in the

sales division, delivering drinks to these customers.

Plaintiffs are non-supervisory employees. CCBCC’s non-supervisory

employees are members of a bargaining unit represented by Local 991 of the

International Brotherhood of Teamsters, Chauffeurs, Warehousemen, and Helpers

8
To simplify discussion, we treat all plaintiffs as current employees unless otherwise
indicated.

5
of America (“the union”) and are paid by the hour.9 A collective bargaining

agreement regulates the terms and conditions of their employment, including the

assignment of light work.

Supervisors are non-union and are paid salaries. Because they are non-

union, the collective bargaining agreement does not regulate the terms and

conditions of their employment. Before plaintiffs filed the EEOC charges that led

to this litigation, CCBCC would fill a vacant supervisory position by word of

mouth. Management would encourage specific non-supervisory employees to

apply for the position and occasionally would solicit applications from outside the

company. When the non-supervisory employees learned of a vacancy, some

would apply. After all the applications were in, a panel of three – which would

normally include the Mobile facility human resources manager, or a member of his

staff, and the person responsible for supervising the open position – would

interview the applicants. CCBCC ceased the word-of-mouth practice, and began

posting vacancies, after plaintiffs filed their EEOC complaints. Plaintiffs Jackson,

Logan, Fox, and Davis were interviewed for supervisory positions prior to filing

their EEOC complaints and before CCBCC changed its word-of-mouth policy.

9
The record suggests that at least some sales positions are compensated, at least in part,
by commission on sales.

6
 Regarding light work, the collective bargaining agreement provides that

light work within an injured employee’s medical restrictions can be assigned when

such is available. CCBCC’s supervisors determine whether and what type of light

work might be available; human resources decides whether the available work fits

the restrictions of the injured employee.10

B.

The complaint in this case contains three counts, two of which are relevant

here.11 Count I, brought under Title VII, alleges that CCBCC discriminates

against its black non-supervisory employees, as a class, by maintaining a pattern

or practice of race discrimination as to “pay, raises, benefits, ability to advance,

and right to be free of racial discrimination, harassment and intimidation, and

other terms and conditions of employment.” Count I asks that the maintenance of

the pattern or practice be declared unlawful and enjoined, and seeks equitable and

10
In its answer to plaintiffs’ complaint, CCBCC stated, in its ninth defense, that “some”
of plaintiffs’ claims “may be preempted by Section 301 of the Labor-Management Relations Act,
1947, 29 U.S.C. § 141,” and, in its tenth defense, that “[t]hose claims . . . that may be preempted
by Section 301 . . . fail to state claims upon which relief can be granted because they are barred
under Section 301 due to Plaintiffs’ failure to exhaust the contractual remedies provided for in
their collective bargaining agreement.” The record contains bits and pieces of evidence, none
probative, that some plaintiffs pressed grievances on some unidentified claims, but the questions
raised by these defenses were never presented to, or ruled on, by the district court. Hence, the
section 301 issues are not before us.
11
Count III, based on Alabama tort law, incorporates Counts I and II and prays for
compensatory and punitive damages for, among other things, negligent training and supervision
of CCBCC management. Count III is not involved in this appeal.

7
legal relief for each of the named plaintiffs. Count II incorporates the allegations

and prayers for relief of Count I and alleges, in addition, that CCBCC’s conduct

“deprive[s] plaintiffs of the same . . . contract[] [rights] as is enjoyed by similarly

situated white persons in violation of 42 U.S.C. § 1981.” The complaint contains

no count in which a plaintiff alleges that he was, or is, a victim of one or more

specific features of the above pattern or practice of race discrimination. Rather,

the complaint implies – in Counts I and II and the prefatory allegations preceding

Count I – that all nine plaintiffs, and all other black non-supervisory employees of

CCBCC, have experienced, and are continuing to suffer from, all of the features of

the alleged pattern or practice.

As we indicate in our introduction to this opinion, by the time the district

court took CCBCC’s motion for summary judgment under advisement,12 plaintiffs’

claims had been reduced essentially to those we address in this opinion. Plaintiffs’

pattern or practice claim, which relates to CCBCC’s method of hiring supervisors,

had been dismissed because, in the court’s view, a pattern or practice claim can

only be maintained as a class action and plaintiffs had not sought class

12
See Fed. R. Civ. P. 56. CCBCC filed nine motions for summary judgment, one in
response to each plaintiff’s claims. For our purposes, these motions are treated as one motion.

8
certification.13 What remained of the pattern or practice claim, therefore, were the

individual claims: each plaintiff contended that CCBCC had refused to promote

him to a vacant supervisory position because of his race. The court granted

CCBCC summary judgment on these claims as time-barred under both Title VII

and § 1981.14 The court then addressed plaintiffs’ light work and retaliation

claims, brought under Title VII and § 1981, and held that they were either time-

barred or, like plaintiffs’ individual hostile work environment claims, failed for

lack of proof.15

We now turn to the issues this appeal presents. We begin with the question

of whether the district court erred in ruling that plaintiffs, proceeding individually

or collectively rather than as class action representatives, could not prosecute a

pattern or practice claim.

II.

A.

13
The court had dismissed the pattern or practice claim in orders granting CCBCC’s
motions for judgment on the pleadings. See supra note 5. The court dismissed the claim once
again on summary judgment, because the claim had been repled and was before the court at that
time.
14
The court entered its order granting summary judgment on April 26, 2005. The suit
had been filed on August 19, 2002. See supra note 2.
15
As indicated at note 7, supra, the hostile work environment claims are not involved in
this appeal.

9
 Section 707(a) of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-6(a),

entitles the Government16 to bring a pattern or practice claim on behalf of a class

of similarly situated employees for declaratory and injunctive relief against an

ongoing act of intentional discrimination in violation of Title VII.17 A pattern or

practice claim for such relief may also be brought under Title VII as a class action,

pursuant to Federal Rule of Civil Procedure 23(b)(2), by one or more of the

similarly situated employees. See Cooper v. Federal Reserve Bank of Richmond,

467 U.S. 867, 876 n.9, 104 S. Ct. 2794, 2800, 81 L. Ed. 2d 718 (1984) (“[I]t is

plain that the elements of a prima facie pattern-or-practice case are the same in a

private class action [as when the Government brings the claim].”). In addition to

praying for declaratory and injunctive relief, the complaint may also seek back pay

on behalf of individual class members who have been injured by the employer’s

discriminatory practice. 42 U.S.C. § 2000e-5(g)(1). We have referred to such

16
This right belonged to the Attorney General until it shifted to the EEOC on March 24,
1974. 42 U.S.C. § 2000e-6(c). Now the EEOC, upon reasonable cause, may sue private entities,
and the Attorney General may sue governmental entities. 42 U.S.C. § 2000e-5(f)(1).
17
The Supreme Court noted long ago that “[t]he ‘pattern or practice’ language in §
707(a) of Title VII was not intended as a term of art.” Int’l Bhd. of Teamsters v. United States,
431 U.S. 324, 336 n.16, 97 S. Ct. 1843, 1855, 52 L. Ed. 2d 396 (1977) (internal citation omitted).
Regardless of what Congress may or may not have intended, the phrase has come through
common usage to represent the sum total of the evils Congress intended to attack in § 707(a) of
the Civil Rights Act of 1964, 42 U.S.C. § 2000e-6(a). See, e.g., Cooper v. Fed. Reserve Bank of
Richmond, 467 U.S. 867, 876-77, 104 S. Ct. 2794, 2799-2800, 81 L. Ed. 2d 718 (1984). We use
it thus.

10
complaint as presenting a “hybrid Rule 23(b)(2) class action.” Cox v. Am. Cast

Iron Pipe Co., 784 F.2d 1546, 1554 (11th Cir. 1986).18

The court must address two issues before proceeding to adjudicate as a class

action a pattern or practice claim. First, the court must determine whether the

named plaintiff has standing to prosecute the claim on behalf of similarly-situated

employees. See Murray v. U.S. Bank Trust Nat’l Ass’n, 365 F.3d 1284, 1288 n.7

(11th Cir. 2004). Only someone who claims he has been, or is likely to be, harmed

by the ongoing discriminatory practice has an adequate stake in the litigation to

satisfy the “case or controversy” requirement of Article III. See Flast v. Cohen,

392 U.S. 83, 99-101, 88 S. Ct. 1942, 1952, 20 L. Ed. 2d 947 (1968).19 If the

18
A pattern or practice claim may be brought under § 1981 as well as Title VII, in which
case Title VII’s substantive rules inform the § 1981 rules of decision. Bass v. Bd. of County
Comm’rs, 256 F.3d 1095, 1109 n.4 (11th Cir. 2001). In 1991, Congress amended § 1981 –
through the enactment of The Civil Rights Act of 1991, Pub. L. No. 102-166, 105 Stat. 1071
(codified as amended at 42 U.S.C. § 1981) – to enable plaintiffs to recover compensatory and
punitive damages and to demand a trial by jury. Thus, in an employment discrimination suit
brought, as here, under Title VII and § 1981, a plaintiff can obtain, in addition to declaratory and
injunctive relief under both statutes, back pay under Title VII and § 1981, and compensatory and
punitive damages under § 1981. The maintenance of a Rule 23(b)(2) class action for all the
relief these two statutes together afford is problematical. See Cooper v. Southern Co., 390 F.3d
695 (11th Cir. 2004).
19
In particular, a plaintiff must claim facts consistent with the constitutional standing
requirements. Bennett v. Spear, 520 U.S. 154, 167, 117 S. Ct. 1154, 1163, 137 L. Ed. 2d 281
(1997) (“[The] irreducible constitutional minimum of standing requires: (1) that the plaintiffs
have suffered an injury in fact – an invasion of a judicially cognizable interest which is (a)
concrete and particularized and (b) actual or imminent, not conjectural or hypothetical; (2) that
there be a causal connection between the injury and the conduct complained of – the injury must
be fairly traceable to the challenged action of the defendant, and not the result of the independent

11
named plaintiff lacks standing to sue, he cannot prosecute the pattern or practice

claim, and unless an employee who has been, or is likely to be, harmed by the

discriminatory practice is substituted as the named plaintiff, the claim fails.

Second, assuming the named plaintiff has standing to sue, the court must

determine whether Rule 23(a)’s requirements of numerosity, commonality,

typicality, and adequacy are satisfied,20 and whether, as required by Rule 23(b)(2),

the defendant “has acted or refused to act on grounds that apply generally to the

class, so that final injunctive relief or corresponding declaratory relief []

appropriate respecting the class as a whole.” Fed. R. Civ. P. 23(b)(2).

If the court resolves these two issues in favor of proceeding with the class

litigation and, at the conclusion of the first stage, finds that the employer has an

ongoing practice of discrimination against the plaintiff class, declares the practice

action of some third party not before the court; and (3) that it be likely, as opposed to merely
speculative, that the injury will be redressed by a favorable decision.”) (citing Lujan v. Defenders
of Wildlife, 504 U.S. 555, 560-561, 112 S. Ct. 2130, 2136-2137, 119 L. Ed. 2d 351 (1992))
(quotations omitted).
20
Rule 23(a) reads:

One or more members of a class may sue or be sued as representative parties on
behalf of all only if: (1) the class is so numerous that joinder of all members is
impracticable; (2) there are questions of law or fact common to the class; (3) the
claims or defenses of the representative parties are typical of the claims or
defenses of the class; and (4) the representative parties will fairly and adequately
protect the interests of the class.

Fed. R. Civ. P. 23(a).

12
invalid and enjoins the practice, the case advances to the second stage. There,

individual class members may seek redress for injuries sustained, perhaps in

separate proceedings. See Int’l Bhd. of Teamsters v. United States, 431 U.S. 324,

361, 97 S. Ct. 1843, 1868, 1855, 52 L. Ed. 2d 396 (1977).21 Because the court’s

“finding of a pattern or practice changed the position of the employer to that of a

proved wrongdoer,” each class member seeking redress may rely on that finding as

circumstantial evidence that the employer made the challenged employment

decision with intent to discriminate. Id. at 359 n.45, 97 S. Ct. at 1867. See also

Rutstein v. Avis Rent-A-Car Sys., Inc., 211 F.3d 1228, 1238 n.18 (11th Cir. 2000).

In that case, the employer bears the burden of proving that the challenged

decision, made when the discriminatory practice was in force, was not made in

pursuit of that practice but was, instead, made because that claimant was

unqualified for the benefit he sought. Cox, 784 F.2d at 1559.

If the court denies the plaintiffs relief in the first stage, however, because

the named plaintiff failed to establish the alleged pattern or practice, the class

claim is dismissed.22 Hence, all that remains are the claims of the individual class

21
Claims of individual class members might be tried together to the extent that they
presented common issues of fact and the court deemed it efficient to try the claims as a group in
order to avoid inconsistent fact findings on the same evidence.
22
A caveat to this statement is that if the court finds the alleged pattern or practice to
have been maintained, but does not issue an injunction because the likelihood that the practice

13
members, and those claims will be litigated under the familiar McDonnell Douglas

burden-shifting framework. See McDonnell Douglas Corp. v. Green, 411 U.S.

792, 802, 93 S. Ct. 1817, 1824, 36 L. Ed. 2d 668 (1973).23

B.

1.

Plaintiffs argue that nothing in our precedent precludes them, as individuals,

from prosecuting a pattern or practice claim for declaratory and injunctive relief

without being certified as class representatives,24 and that the district court

will continue is nil, the court may enter a declaratory judgment, and the case will proceed to the
second stage as if injunctive relief had been entered as well.
23
On this point, our opinion in Reynolds v. Roberts, 202 F.3d 1303 (11th Cir. 2000)
(Reynolds I), is instructive. In that case, three classes of plaintiffs challenged the employer’s
discriminatory policies. Id. at 1306. After the beginning of trial, but before the district court
made a finding on the issue of liability, the parties entered into settlement negotiations that
ultimately resulted in a series of consent decrees. Id. at 1307. The court treated a consent decree
as an admission of liability on the part of the employer, and ordered it to pay individual damages
to certain class members without requiring each member to make out an individual case of
discrimination. Id. at 1311. We did not agree that the consent decree established the employer’s
liability and held that “the members of the three plaintiff classes must prove that the [defendant]
discriminated against them on account of their race when it failed to hire or promote them . . .
[and a] member will establish a prima facie case of racial discrimination if he or she satisfies the
McDonnell Douglas test.” Id. at 1319.
24
Plaintiffs contend that our holding in Cox, 784 F.2d 1546, stands as precedent for the
proposition that an individual plaintiff, not preceding as a class representative, may bring a
pattern or practice claim. Their opening brief says that in Cox this circuit held that “individual
plaintiffs have the same substantive right to root out a pattern and practice of employment
discrimination as do class plaintiffs.” Appellant’s Brief at 25.
Plaintiffs misconstrue Cox, which was a class action case, albeit an odd one. The district
court de-certified a class but found as a matter of fact that the defendant employer perpetuated a
discriminatory policy. Id. at 1558-59. We reversed the court’s de-certification order, id. at 1558,
and explained that the proposed class satisfied the requirements for certification because the

14
therefore erred in dismissing their claim.25 We acknowledge that our precedent

does not explicitly foreclose plaintiffs’ argument; plaintiffs give no indication,

however, of comprehending why private pattern or practice claims for such relief

must be litigated either as class actions or not at all.

Plaintiffs’ complaint – to the extent it implicates CCBCC’s practice of

hiring supervisors – presented, in essence, a typical hybrid Rule 23(b)(2) class

action.26 That is to say, the complaint alleged that CCBCC’s word-of-mouth

practice of hiring supervisors is ongoing and applies to all black CCBCC

employees who, like the named plaintiffs, are qualified to hold supervisory

positions that go to white employees and white outsiders. And it all but stated that

these black employees constituted a class and that the named plaintiffs were

representing them. We say this because the complaint asked for the type of relief

stage one of a Rule 23(b)(2) class action would afford – a declaration that the

word-of-mouth hiring practice discriminated against blacks and an injunction

members were similarly situated and therefore “were entitled to the presumption that the
complained-of employment practices violated Title VII.” Id. at 1559. The panel never said that
Title VII entitles an individual plaintiff to seek declaratory or injunctive relief against a class-
wide pattern or practice of discrimination.
25
The EEOC, as amicus curiae, agrees, and argues that a pattern or practice claim may be
brought as an individual action or a class action as the plaintiff chooses.
26
This is true as to Count I, which seeks relief under Title VII, and Count II, which
incorporates Count I and seeks relief under § 1981. Thus, in this subpart, we do not differentiate
between the two counts.

15
against its continued use – relief that would inure to the benefit not only of the

named plaintiffs but to similarly situated black employees as well. The complaint

also presented the claims of the individual plaintiffs in the form of back pay and

other monetary relief, stage two of a hybrid Rule 23(b)(2) class action.

A Rule 23(b)(2) class certification would give the named plaintiffs standing

to represent the claims of the unnamed class members for declaratory and

injunctive relief. Without Rule 23(b)(2) certification, however, the named

plaintiffs lack standing to pursue such relief for themselves, because the complaint

did not allege a likelihood that they will be denied a supervisory position in the

future.27 See City of Los Angeles v. Lyons, 461 U.S. 95, 106 n.7, 103 S. Ct. 1660,

1667, 75 L. Ed. 2d 675 (1983) (To have constitutional standing to seek injunctive

relief, a “[plaintiff] would have to credibly allege that he faced a realistic threat

from the future application of the [defendant’s] policy.”). And as a prudential

matter, absent Rule 23(b)(2) certification, they lack standing to represent the

absent unnamed class members.28 United Food and Commercial Workers v.

27
In the case at hand, none of the plaintiffs has alleged that he will likely be denied a
specific hiring, i.e., that a supervisory vacancy for which he would be qualified will become
available at some future date. Whether this scenario is likely to occur is pure speculation.
28
This point is made clear by the holding in Franks v. Bowman, 424 U.S. 747, 755-56,
96 S. Ct. 1251, 1259-60, 47 L. Ed. 2d 444 (1976). A class representative can have standing to
continuing prosecuting a class action for relief on behalf of the class members even though he
has settled his claim against the defendant and his own case is therefore moot.

16
Brown Group, 517 U.S. 544, 557, 116 S. Ct. 1529, 1536, 134 L. Ed. 2d 758 (1996)

(“‘[T]he general prohibition on a litigant’s raising another person’s legal rights’ is

a ‘judicially self-imposed limit on the exercise of federal jurisdiction,’ not a

constitutional mandate.”) (quoting Allen v. Wright, 468 U.S. 737, 751, 104 S. Ct.

3315, 3324, 82 L. Ed. 2d 556 (1984)). In short, plaintiffs lacked standing to

obtain the sort of declaratory and injunctive relief Title VII provides an employee

class under Rule 23(b)(2) – the broad scope of relief Congress envisioned in

enacting section 707(a) of the Civil Rights Act of 1964.29

The prudence of the general prohibition on third-party standing is

particularly acute in the employment discrimination context. When a complaint

appears, as here, to constitute a class action, the statute of limitations is tolled as of

the date the complaint is filed, and it remains tolled until the court rejects class

certification or the case comes to an end. See American Pipe & Constr. Co. v.

29
Plaintiffs contend that the Rules Enabling Act, 28 U.S.C. § 2072, effectively forecloses
the district courts from denying the right of a plaintiff to bring a pattern or practice claim
individually, rather than as a class action representative. The Act prohibits the use of a
procedural rule to “abridge, enlarge, or modify a substantial right.” 28 U.S.C. § 2072(b). In
plaintiffs’ view, requiring a plaintiff to bring a pattern or practice claim as a class representative
– or not at all – abridges the individual plaintiff’s substantive right under Title VII to be free from
a pattern or practice of discrimination based only on the technical requirements of Rule 23. What
we have said in the preceding text indicates why a plaintiff cannot prosecute a pattern or practice
claim alone. When proceeding alone, the plaintiff lacks third-party standing to represent the
absent class members, and unless he can demonstrate a genuine likelihood that the pattern or
practice will continue and deprive him of a protected right, he lacks constitutional standing.

17
Utah, 414 U.S. 538, 552-53, 94 S. Ct. 756, 765-66, 38 L. Ed. 2d 713 (1974).

Potential class members need to know where they stand; are they to become

members of a certified class, or must they proceed with their own lawsuits? May

they piggyback on the named plaintiffs’ EEOC charges, or must they file their

own? See Albermarle Paper Co. v. Moody, 422 U.S. 405, 414 n.8, 95 S. Ct. 2362,

2370, 45 L. Ed. 2d 280 (1975).

Most important, perhaps, are the potential res judicata and collateral

estoppel issues that would arise if the law permitted an individual to prosecute a

pattern or practice claim without formally representing all similarly-situated

employees. As it stands, if a class is certified and the employer prevails on the

pattern or practice issue, unnamed class members would be barred by res judicata

from asserting the pattern or practice claim in a separate proceeding, even though

they might retain their individual disparate treatment actions against the employer.

If a class is not certified and the employee prevails, however, whether the

unnamed class members would be barred by the doctrine of issue preclusion fm

proceeding against the employer would be problematical.

Here, plaintiffs sought declaratory and injunctive relief in their complaint,

thus appearing to represent that they were prosecuting a pattern or practice claim

on behalf of CCBCC’s black non-supervisory employees at the Mobile facility.

18
But they did not ask the court to certify the class. The court therefore assumed –

and we speculate here because the record is silent on the point – that plaintiffs did

not intend to seek certification, and entered an order, on CCBCC’s first Rule 12(c)

motion for judgment on the pleadings, holding that plaintiffs could not prosecute

their pattern or practice claim as if they were prosecuting a class action under Rule

23(b)(2). Finally, by the time the court took CCBCC’s motion for summary

judgment under advisement, plaintiffs had all but formally abandoned their prayer

for declaratory and injunctive relief on their pattern or practice claim. In sum, the

district court did not err in dismissing plaintiffs’ pattern or practice claim qua

claim.30

2.

Anticipating our holding, plaintiffs argue that the pattern or practice

allegations and the evidence they presented in support thereof were intended to

perform two functions in addition to serving as the basis for an independent, free-

standing claim: (1) to avoid the Title VII and § 1981 time-bars, and (2) to shift to

the employer, as wrongdoer under both statutes, the burden of proving that its

30
Several of our sister circuits have already recognized the prudence of limiting a private
pattern or practice claim to certified class actions. See Bacon v. Honda, 370 F.3d 565, 575 (6th
Cir. 2004); Lowery v. Circuit City Stores, Inc., 158 F.3d 742, 760-61 (4th Cir. 1998), vacated on
other grounds, 527 U.S. 1031, 119 S. Ct. 2388, 144 L. Ed. 2d 790 (1999); Brown v. Coach
Stores, Inc., 163 F.3d 706, 711 (2d Cir. 1998).

19
refusal to hire them as supervisors was not made in pursuit of its unlawful pattern

or practice, but was made instead for a race-neutral reason.31 We do not reach the

second function because the district court denied relief on plaintiffs’ hiring claims

on the ground that they were time-barred.32 We do, however, reach the first

function and determine the time-bar issues.

III.

Plaintiffs contend that CCBCC’s pattern or practice of race discrimination

31
Under the McDonnell Douglas framework, as described infra, once a plaintiff has
established a prima facie case that the challenged employment decision was motivated by an
intent to discriminate, the burden of producing a non-discriminatory reason for the decision is
shifted to the employer, but the burden of proving that the non-discriminatory reason was the
reason for the challenged action is not. In other words, the burden of proof on the issue of
whether the employer was guilty of unlawful discrimination remains with the plaintiff. Texas
Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 252-53, 101 S. Ct. 1089, 1093, 67 L. Ed. 2d
207 (1981). By contrast, plaintiffs wanted to establish the alleged pattern or practice in order to
shift the burden of proof on the motivation issue to CCBCC at trial. See Teamsters, 431 U.S. at
359, 97 S. Ct. at 1866. Thus, at trial, if plaintiffs introduced evidence showing that they and their
similarly situated co-employees were all qualified for the supervisory vacancies at issue, as they
alleged in their complaint, and that CCBCC had engaged in the pattern or practice alleged, they
would have been able to withstand a defense motion for judgment as a matter of law made at the
close of the evidence, and the court would have instructed the jury that, if it found the pattern or
practice alleged, CCBCC had the burden of proving that the challenged employment decision
was not made pursuant to such pattern or practice.
32
As we indicate in Part IV.A, infra, the court erred in dismissing three of the hiring
claims as time-barred under Title VII. Since we have the authority to affirm a district court’s
judgment on a ground not reached by the court, we affirm the court’s rejection of one of the
hiring claims on the ground that the claim has been abandoned. Given the muddled record
concerning the two other claims, we decline to consider affirming on a ground the court did not
reach.

20
constituted a “continuing violation.”33 Accordingly, they argue, neither Title VII’s

180-day limitations period nor § 1981’s borrowed statutes of limitations – two

years for hiring and four years for light work assignments – bars recovery for a

hiring or light work event that occurred prior to these limitations periods. The

district court held that these events constituted discrete acts of discrimination, and

therefore were subject to the relevant time bars.

National Railroad Passenger Corp. v. Morgan, 536 U.S. 101, 122 S. Ct.

2061, 153 L. Ed. 2d 106 (2002), involved claims by a former employee that his

employer had engaged in discrete acts of race discrimination and retaliation and

had maintained a racially hostile work environment. The Supreme Court held that

if the act gives rise to a cause of action under Title VII, then it is subject to Title

VII’s 180-day limitations period. Id. at 114-15, 122 S. Ct. at 2073. The acts the

employee complained of were actionable and occurred prior to the 180-day period,

so they were barred. As for the hostile work environment claim that spanned the

180-day period, the Court held the claim actionable, even though some of the acts

establishing the claim occurred outside that limitations period. Id. at 117, 122 S.

33
Plaintiffs so contend under the assumption that their pattern or practice claim was
properly dismissed qua claim. This, however, would not render their pattern or practice evidence
irrelevant; it could be used to establish a continuing violation that would avoid the time-bar.

21
Ct. at 2074.34 This court has applied Morgan’s teaching to claims under § 1981 as

well as Title VII. Shields v. Fort James Corp., 305 F.3d 1280, 1282 (11th Cir.

2002).

In this case, CCBCC’s hiring decisions, light work assignments, and alleged

retaliation constituted discrete acts, not acts that were part of a hostile work

environment. In that plaintiffs’ pattern or practice allegations could not avoid the

Title VII and § 1981 time-bars applicable to these acts, the district court did not

err in treating such acts as discrete acts under Morgan and in holding some of

them time-barred.35 What remains for our decision is whether the court erred in

34
The Court explicitly refrained from considering whether the 180-day limitations
period, when applied in the pattern or practice class action context, would bar claims of the
individual class members based on acts that occurred prior to that limitations period. Id. at 115
n.9, 122 S. Ct. at 2073.
35
The critical dates for determining whether a claim in this case was time-barred are as
follows. The 180-day time-bar for the Title VII hiring, light work, and retaliation claims is
measured from the date plaintiffs filed their EEOC charges, August 1, 2000. The discriminatory
acts occurring before February 4, 2000, were therefore time-barred under Title VII. The two-year
time-bar for the § 1981 hiring claims is measured from the date plaintiffs filed this lawsuit,
August 19, 2002. The discriminatory hirings occurring before August 19, 2000, were therefore
time-barred under § 1981. The four-year time-bar for the § 1981 light work and retaliatory
claims is also measured from August 19, 2002. The light work and retaliatory claims occurring
before August 19, 1998, were therefore time-barred under § 1981.
Given these dates, the district court properly held the following failure-to-hire claims
time-barred under both Title VII’s 180-day and § 1981’s two-year limitations periods:
Davis’s and Martin’s claims arising out of the February 1999 hiring of John Gilbert as
Bulk Account Manager;
Foster’s, Fox’s, and Law’s claims arising out of the August 1, 1999 hiring of Jimmy
Hassler; the July 1, 1999 hiring of Wyatt Gerald and the August 2, 1999 hiring of Keith Watson;
Jackson’s claim arising out of the December 21, 1998 hiring of Sheila Morris as a
Training Supervisor;

22
holding three Title VII hiring claims time-barred and in rejecting on the merits

three § 1981 light work claims, one of which was brought under Title VII as well,

and two § 1981 retaliation claims.36 In the next part, we take up the three hiring

Logan’s claim arising out of the June 15, 1999 hiring of Kim Welton as a Sales
Representative.
The district court properly held the following failure-to-hire claims time-barred under §
1981’s two-year limitations period. The court erred, however, in dismissing them as time-barred
under Title VII, as we explain in our discussion in Part IV, infra.
Davis’s claim arising out of the March 2000 hiring of John Gilbert.
Jackson’s claims arising out of the March 27, 2000 hiring of David Presnall and the July
28, 2000 hiring of Paul Schum.
The district court properly held the following failure-to-assign light work claims time-
barred under Title VII’s 180-day limitations periods:
Law’s claim arising in June 1999;
Watson’s claim arising on or about July 26, 1999.
36
Plaintiff’s opening brief cites claims which, it contends, were pled in the complaint
and ignored by the district court in its order granting CCBCC summary judgment. The brief
argues that they were sufficient to withstand summary judgment, and asks that they be remanded
for trial. We list these claims below, as they appear in the complaint. They were brought under
both Title VII and § 1981. They are meritless.
CCBCC discriminated against black union employees by assigning them to “jobs and
routes in black communities and to the more difficult assignments in defendant’s bottling and
production plants.” These jobs were subject to the bidding process prescribed by the collective
bargaining agreement. None of the plaintiffs alleged, nor in response to CCBCC’s motion for
summary judgment did he proffer evidence, that he was assigned such work and, if so, whether
he bid for it.
CCBCC discharged Lorenzo Martin because of his “race and for his opposition to racial
discrimination” on an unspecified date prior to March 28, 2003, the day the plaintiffs filed their
second amended complaint. See supra note 2. (Plaintiffs’ original complaint was filed August
19, 2002, and contains no reference to Lorenzo Martin’s discharge.) The Appendix to plaintiffs’
opening brief cites, and attaches, the EEOC charge Martin filed on October 4, 2001, complaining
of having been discharged on June 16, 2001, and EEOC’s Determination regarding the charge.
The Appendix states that these two documents were presented to the district court in opposition
to CCBCC’s motion to summary judgment: the EEOC charge at “R89-1”; and the Determination
at “R36-Exh. G”), an attachment to the second amended complaint. The record gives no
indication that the charge was, in fact, presented to the district court. In the charge, Martin states
that he was fired “for allegedly violating company policy in regard to sick days,” by not calling
his supervisor each day he was absent. “White employees [took] sick leave or other leave

23
claims. We also consider whether the court should have recognized sixteen hiring

claims not explicitly asserted in plaintiffs’ complaint but mentioned in memoranda

plaintiffs filed in opposition to CCBCC’s motion for summary judgment.37

IV.

A.

Plaintiffs Melvin Davis and Terry Jackson contend that the district court

without having to notify their supervisor every day they were absent from work.” He “believes”
that the firing was in retaliation “for filing” his EEOC charge on August 1, 2000. If we err in
stating that the charge was not before the district court on summary judgment, the error is of no
moment. Martin’s self-serving explanation for CCBCC’s firing decision lacks probative value.
Moreover, his statement about the white employees is rank hearsay and inadmissible for
summary judgment purposes.
CCBCC discriminated against Martin on a date not specified by assigning a white
employee, instead of him, to a temporary position for eight weeks. The claim fails for alternative
reasons. First, Martin did not defend the claim on summary judgment; he thus abandoned it.
Second, the record is undisputed that Martin’s supervisor did not want to take him from his route
sales job for the temporary assignment because Martin was a “more dependable, and a better
salesman” than the white employee, a patently non-discriminatory reason.
CCBCC discriminated against Warren Law on account of his race when a supervisor told
him that the company had a facial hair policy; Law had a short beard due to medical restrictions,
which were on file. Law does not contend that he was required to shave his beard; his injury is
that he felt threatened. This does not constitute an actionable claim.
CCBCC discriminated against Michael Fox on July 20, 2000, by reassigning him “from
the sales route he was working, which is considered a desired position,” to “a more physically
demanding route” and replacing him with a less qualified white employee. CCBCC, responding
to the claim in moving for summary judgment, treated it as part of Fox’s claim that CCBCC
subjected him to a racially hostile work environment. Fox did not respond to this
characterization of his claim; in fact, he did not respond to CCBCC’s motion for summary
judgment. The court denied it as part of its ruling on plaintiffs’ racially hostile work
environment claim, a claim not before us in this appeal. See supra note 7.
37
We note that after the court entered summary judgment, plaintiffs did not move the
court pursuant to Fed. R. Civ. P. 59(e) to alter or amend its judgment so as to address the merits
of these twenty-five claims.

24
erred in holding their hiring claims time-barred. Davis’s claim is based on the

hiring of John Gilbert, a white employee, to the position of Bulk Supervisor in

“March of 2000.”38 Jackson has two claims: the first is based on the hiring of

David Presnall, as Production Supervisor, in March 2000; the second is based on

the hiring of Paul Schum, as Production Scheduler, in July 2000. Both Presnall

and Schum are white. We consider these claims in sequence.

Davis’s problem is that plaintiffs’ opening brief does not challenge the

Gilbert hiring at all. There is no mention of Davis’s claim in the brief’s Statement

of Issues, Statement of Case, or Argument. The only mention of Davis by name is

in the brief’s Statement of Facts, in footnote 3, which repeats the complaint’s

allegation that “[i]n March 2000, John Gilbert, a white male, was promoted to a

position as Bulk Account Manager.” Appellants’ Br. at 11, n.3. CCBCC’s answer

brief says nothing at all about the Gilbert hiring. Plaintiffs’ reply brief, though,

devotes an entire section to the John Gilbert hiring in March 2000 to the position

of Bulk Accounts Manager. The reply brief states for the first time that all of the

plaintiffs, which necessarily would include Davis, “established a prima facie case”

regarding Gilbert’s March 2000 hiring (which was within Title VII’s 180-day

38
The complaint states that in “March of 2000, John Gilbert, a white male, was promoted
to a position as Bulk Account Manager” and that he “was no better qualified for this position
than Davis.”

25
limitations period). Appellants’ Reply Br. at 17.

It is well settled in this circuit that an argument not included in the

appellant’s opening brief is deemed abandoned. Asociacion de Empleados del

Area Canalera v. Panama Canal Comm’n, 453 F.3d 1309, 1316 n.7 (11th Cir.

2006). And presenting the argument in the appellant’s reply does not somehow

resurrect it. Id.; Lovett v. Ray, 327 F.3d 1181, 1183 (11th Cir. 2003). The district

court denied Davis’s claim as time-barred. We affirm the court’s decision not on

the ground that the claim is time-barred, but on the ground that the claim has been

abandoned. We proceed now to a consideration of Jackson’s claims.

In granting CCBCC summary judgment, the district court made no mention

of Jackson’s claims concerning the Presnall and Schum hirings. Rather, the court

disposed of them sub silentio in stating that all of plaintiffs’ hiring claims were

time-barred.39 Jackson argues that the two claims – both arising during Title VII’s

39
In their opening brief, plaintiffs assert that the court failed to rule on Jackson’s two
claims, which would mean that we do not have a final judgment before us, i.e., “one which ends
the litigation on the merits and leaves nothing for the court to do but execute the judgment.”
Pitney Bowes, Inc. v. Mestre, 701 F.2d 1365, 1368 (11th Cir. 1983) (quoting Catlin v. United
States, 324 U.S. 229, 65 S. Ct. 631, 89 L. Ed. 911 (1945)). According to plaintiffs, however, that
could not be the case, for, in the Statement of Jurisdiction, the brief states: “Jurisdiction exists as
an appeal from a final judgment.” Appellant’s Br. at 1. CCBCC’s answer brief, in the Statement
of Jurisdiction, states: “The jurisdiction of this Court is invoked pursuant to 28 U.S.C. § 1291 . . .
as an appeal from a final judgment.” Appellee’s Br. at 1. To be sure, a partial final judgment
entered pursuant to Fed. R. Civ. P. 54(b) would qualify as a final judgment under § 1291, but the
court was not asked to and did not enter a Rule 54(b) judgment in this case. What we have, then,
is a final judgment in which the court, in its sweeping statement that all Title VII claims are time-
barred, included Jackson’s claims sub silentio.

26
180-day limitations period – were timely. CCBCC, in its answer brief, admits that

the claims are timely. Appellee’s Br. at 32. The question thus becomes whether

we remand Jackson’s claims to the district court for further proceedings on the

merits, or exercise our discretion to affirm the court’s disposition of the claims on

a ground the court did not explicitly consider.40 See U.S. v. Simmons, 368 F.3d

1335, 1342 (11th Cir. 2004) (“[W]e have the authority to affirm the district court,

even if it is on a ground other than that upon which it based its decision.”). We

have examined the record and cannot say with confidence that Jackson’s claims,

viewed within the McDonnell Douglas framework, fail as a matter of law.41 We

therefore remand them to the district court for further proceedings.

B.

Plaintiffs fault the district court for summarily rejecting some sixteen hiring

40
In its answer brief, CCBCC does not ask us to do this. It simply requests that we
affirm the district court’s ruling, referring us to their motion for summary judgment and the
plaintiffs’ consolidated response to the motion.
41
To establish a prima facie case of intentional discrimination, the plaintiff must show
that (1) he is a member of a protected class, (2) was qualified and applied for the position at
issue, (3) was rejected, and (4) the position was filled by a person outside the protected class.
Vessels v. Atlanta Indep. Sch. Sys., 408 F.3d 763, 768 (2005). Where, as in this case, the
employer uses “an informal [hiring] system in which it does not post openings,” Jones v.
Firestone Tire & Rubber Co., 977 F.2d 527, 533 (11th Cir. 1992), the plaintiff makes out a prima
facie case by showing that the employer had a reason to think the plaintiff was interested in the
position. See Walker v. Prudential Prop. & Cas. Ins. Co., 286 F.3d 1270, 1275-76 (11th Cir.
2002). In remanding Jackson’s claims to the district court, we intimate no view as to whether the
claims are amenable to disposition on summary judgment.

27
claims that were set out and argued in the memoranda they filed in opposition to

CCBCC’s motion for summary judgment, but were not explicitly pled in their

complaint. The hirings at issue are the Presnall and Schum hirings in March and

July 2000, respectively.42 The court rejected the claims with this cursory

statement: “[t]o the extent plaintiffs seek to include additional [hiring] decisions

not identified in the complaint, those additional claims are not properly brought in

this action.”

Federal Rule of Civil Procedure 8(a)(2) requires a complaint to contain “a

short and plain statement of the claim showing that the pleader is entitled to

relief.” The point is to “give the defendant fair notice of what the claim is and the

grounds upon which it rests.” Bell Atlantic Corp. v. Twombly, 127 S. Ct. 1955,

1964 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47, 78 S. Ct. 99, 103, 2 L.

Ed.2d 80 (1957)). To that end, a complaint’s “[f]actual allegations must be

enough to raise a right to relief above the speculative level.” Id. at 1965.

Although a Title VII complaint need not allege facts sufficient to make out a

classic McDonnell Douglas prima facie case, Swierkiewicz v. Sorema N.A., 534

U.S. 506, 511, 122 S. Ct. 992, 997, 152 L. Ed. 2d 1 (2002), it must provide

42
The Argument section of plaintiffs’ opening brief explicitly identifies the Presnall and
Schum hirings, but, as noted in part IV.A, supra, makes no mention of the Gilbert hiring of
March or April 2000. Accordingly, the Gilbert hiring is not before us.

28
“enough factual matter (taken as true) to suggest” intentional race discrimination.

See Twombly, 127 S. Ct. at 1965.43

Plaintiffs argue that their complaint sufficiently pled sixteen individual

claims – two for each plaintiff (other than Jackson) – based on the Presnall and

Schum hirings. The closest the complaint ever comes to pleading those sixteen

claims, however, is when it states plaintiffs were “denied promotions . . . and

treated differently than similarly situated white employees solely because of []

race.” That statement epitomizes speculation and therefore does not amount to a

short and plain statement of their claim under Rule 8(a). See id. at 1964.

Plaintiffs attempt to get around this pleading problem by pointing out that,

as alleged in their complaint, they could not cite discriminatory hirings of which

they were unaware at the time the complaint was filed; therefore, the Presnall and

43
In Bell Atlantic Corp. v. Twombly, 127 S. Ct. 1955 (2007), the Supreme Court
considered the pleading sufficiency of a claim under section 1 of the Sherman Act, 15 U.S.C. §
1. It held that a claim under section 1 of the Sherman Act, 15 U.S.C. § 1, must allege facts
suggesting an agreement “in restraint of trade or commerce,” and that a bald allegation of parallel
conduct that may constitute circumstantial evidence of such an agreement is insufficient without
more. Id. at 1965-66. We understand Twombly as a further articulation of the standard by which
to evaluate the sufficiency of all claims brought pursuant to Rule 8(a). In that case, the Court
retired the oft-cited standard that “a complaint should not be dismissed for failure to state a claim
unless it appears beyond a doubt that the plaintiff can prove no set of facts in support of his claim
which would entitle him to relief,” Conley v. Gibson, 355 U.S. 41, 45-46, 78 S. Ct. 99, 102, 2 L.
Ed. 2d 80 (1957), saying it “is best forgotten as an incomplete, negative gloss on an accepted
pleading standard: once a claim has been stated adequately, it may be supported by showing any
set of facts consistent with the allegations in the complaint.” Twombly, 127 S. Ct. at 1969. The
main Rule 8(a) standard now seems to be whether the “allegations plausibly suggest[] ([and are]
not merely consistent with)” a violation of the law. Id. at 1966.

29
Schum hirings could not have been cited as having been wrought by CCBCC’s

secretive hiring policy, which prevented them from knowing when a supervisor

was hired. The best they could do, their argument goes, was allege discrimination

as to the hirings of which they were actually aware and state generally that they

were discriminated against as to other, unknown hirings as well. Once they

learned about the Presnall and Schum hirings, they were diligent in bringing those

hirings to the court’s attention, having done so in their responses to CCBCC’s

motion for summary judgment.44 They urge that this satisfies the demands of Rule

8(a).

Plaintiffs also point out that they should not be expected to plead in their

complaint more facts than necessary to satisfy their a prima facie case under

McDonnell Douglas. Because a Title VII individual discrimination “prima facie

case is designed to include only evidence that is objectively verifiable and either

easily obtainable or within the plaintiff’s possession,” Vessells v. Atlanta

Independent School System, 408 F.3d 763, 769 (2005), they should not be

required to plead a claim based on a hiring unknown to them.

Plaintiffs’ position is unavailing because plaintiffs possessed information

44
Plaintiffs responded to CCBCC’s motion for summary judgment twice: on November
19, 2003, and January 3, 2005.

30
about the Presnall and Schum hirings before they filed their complaint. The

complaint cites those hirings but only in the context of Jackson’s claims. If, as the

remaining plaintiffs now contend, they would have applied for those supervisory

positions had they known about them, the complaint should have alleged that and

claimed that the hirings were discriminatory as to them.45 It is clear, however, that

no plaintiff other than Jackson brought claims based on the Presnall and Schum

hirings.

V.

Leander Foster and Warren Law argue that the district court erred in

granting summary judgment denying on the merits their § 1981 claims of disparate

treatment in CCBCC’s denial of their requests for light duty.46 Frederick Watson

argues that the court erred in denying three claims. First, CCBCC refused his

request for light work on account of his race. Second, CCBCC retaliated against

him for filing an EEOC charge on August 1, 2000, by downgrading his job

assignment in January 2001. Third, CCBCC discharged him in April 2001 for

45
The drafter of the complaint knew how to allege in a non-speculative way specific
claims of specific plaintiffs. For example, the complaint presented claims for Foster, Fox, and
Law based on the respective hirings of Jimmy Hassler, Wyatt Gerald, and Keith Watson in 1999.
46
Foster brought his claim under Title VII as well as § 1981. Because the standards
governing these claims are the same, Crawford v. W. Elec. Co., 745 F.2d 1373, 1376 (11th Cir.
1984), we refer to the claim as a § 1981 claim.

31
filing the August 1, 2000 EEOC charge and because of his race. The first claim

was timely under § 1981 but not under Title VII; the second claim was not pled in

the complaint but would have been timely under § 1981; and the third claim was

timely under both § 1981 and Title VII. We first address Foster’s and Law’s

arguments, then Watson’s.

A.

The district court denied Foster’s and Law’s light duty claims because they

failed to establish two elements of a prima facie case under McDonnell Douglas:

(1) that light work was available at the time they requested it, and (2) that the work

was given to a similarly situated white employee. As evidence that the court erred

as to the first element, they cite the EEOC “Determination[s],” attached to the

complaint as Exhibits B and E, which state: “A union representative states that

there is always enough work available to allow for light duty assignments.”47 We

assume that the court took this statement into account and that it amounted to

proof that light work was available at the time Foster and Law needed it. Their

problem is that, as the collective bargaining agreement stipulated, an employee

could not be given light work unless it was within his medical restrictions. The

47
The record is silent as to whether Foster and Law presented the alleged wrongful
denial of light work to the union in the context of a grievance.

32
complaint does not allege that light work was available within their medical

restrictions; nor did Foster or Law respond to CCBCC’s motion for summary

judgment with proof that it was. As the district court stated in its order granting

summary judgment:

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

It requires no citation of authority to conclude, as the district court did, that Foster

and Law failed to establish their light work claims.

B.

1.

The district court denied Watson’s light work claim without explication.

The complaint describes the claim with the following language:

On or about July 26, 1999, Watson suffered an on the job injury
which required medical attention. Shortly after being injured, Watson
requested to return to work on light duty status. [CCBCC] denied
Watson’s request on the basis that there were no light duty positions
available. CCBCC has allowed several white employees who have
sustained similar or worse injuries to return to work in a light duty
status. Because Watson was not allowed to return to work in a light
duty status, he was forced to apply for workers’ compensation
benefits, which only equaled sixty-five percent of his regular salary.

33
This claim was not time-barred;48 thus, we assume that the court considered the

claim on its merits and found it patently frivolous and therefore unworthy of

comment.

Watson was injured while engaged in his Bulk Account Manager duties.49

Between July 26, 1999, and the termination of his employment with CCBCC on

April 17, 2001, Watson was attended to in Mobile by American Family Care and

eight physicians of varying specialties. Watson returned to work in early August

1999, and continued working as a Bulk Account Manager – at his regular pay of

$959 per week – with the aid of an assistant, who performed the tasks Watson

could no longer handle. This arrangement lasted until late October 1999. After

48
CCBCC’s answer brief does not deny that Watson’s § 1981 light work claim was
timely. Watson brought the claim under Title VII as well, but it was untimely, and plaintiffs’
opening brief does not assert the contrary.
49
The injury was covered, as the parties agreed, by CCBCC’s workers’ compensation
insurance and Alabama’s Workers’ Compensation statute. Ala. Code § 25-5-1 et seq. In early
2000, Watson, represented by counsel not associated with the firm that has represented plaintiffs
throughout this litigation, sued CCBCC in the Circuit Court of Mobile County, Alabama,
claiming that the injuries he sustained on July 26, 1999, rendered him permanently, partially
disabled and seeking compensation therefore. Watson v. Coca Cola Bottling Co. Consol., No.
CV-00-3285.51 (Montgomery Cir. Ct. 2001). The case was tried to the court on April 9, 2001,
and the court entered judgment for Watson on April 17, 2001, finding that he had sustained a
permanent “injury to the body as a whole, that he [had] sustained a loss of earning capacity as a
result of that injury, and that loss of earning capacity [was] in excess of 34.3%, thereby entitling
him to the two hundred twenty dollars ($220.00) per week for the remaining two hundred forth-
eight (248) weeks” out of a total of the 300 weeks of disability payments permitted by law. The
facts stated in the text following this footnote are drawn for the most part from the circuit court’s
“Findings of Fact, Conclusions of Law and Judgment” and to some extent from Watson’s
deposition.

34
that, and for a two week period, he was engaged in training a relief salesman.

While doing this, he was paid as a Senior Salesman.

Watson’s light work claim fails because, during the time he says he should

have been given light work, he was back at work as a Bulk Account Manager,

albeit with the assistance of a helper who did the things his disability precluded

him from doing. By late October 1999, his ability to continue was doubtful, and

by January, his physicians concluded that he was totally disabled, on a temporary

basis. We find no basis in the record for vacating the court’s judgment on this

claim and remanding it for submission to a jury.

2.

Watson claims that CCBCC retaliated against him – because of the EEOC

charge he had filed on August 1, 2000 – after he returned to work in January 2001.

The retaliation consisted of what he labels “downgrading” his job assignment.

CCBCC referred to it as light work because it fit his medical restrictions. The

district court denied the claim on the ground that the complaint did not present it.

Alternatively, the court found the claim meritless (1) for lack of a causal

connection between the filing of the EEOC charge and the downgrading

assignment in January and (2) because EEOC had a lawful reason for the job

assignment. We agree with the district court that the claim fails on both grounds.

35
 Plaintiffs’ opening brief points to nothing in the complaint that reasonably

could be read to allege this claim. Rather, the brief only addresses the merits of

the claim, as if it had been well pled, and the record contains some evidence of the

circumstances surrounding Watson’s return to work.

In January 2000, Watson’s physicians found him totally disabled. For fifty-

two weeks, he was out of work, drawing temporary total disability workers’

compensation benefits at the rate of $550 per week. He remained on temporary

total disability until January 2001. By that time, according to his physicians, he

had reached maximum recovery, with a permanent partial disability rating, as

indicated in the margin.50 He returned to work early that month under permanent

restrictions: “No lifting or pulling in excess of 15 pounds on a frequent basis. No

lifting or pulling in excess of 30 pounds on an infrequent basis. No carrying in

excess of 25 pounds with right arm. No carrying in excess of 15 pounds with left

arm.”51 CCBCC assigned Watson temporary work that accommodated these

restrictions. The work included, in his words, “scrubbing [soft drink] coolers.”

He scrubbed them “in the mall [and] at high schools on [his] hands and knees.”

He considered this work demeaning and claims he was assigned to it in retaliation

50
See supra note 48.
51
This quotation is taken from CCBCC’s motion for summary judgment. Watson
admitted in his deposition that these restrictions were imposed.

36
for having filed the EEOC charge on August 1, 2000, while he was out of work

drawing temporary total disability benefits.

Employing the framework for deciding retaliation claims under Title VII

(which governs retaliation claims under § 1981),52 the court rejected Watson’s

retaliation claim on two grounds: (1) the filing of the EEOC charge was too

remote to his return to work five months later to establish causation, and (2)

CCBCC’s reason for assigning Watson to the work at issue – that the decision was

based on Watson’s medical disability – was legitimate and unrebutted. Assuming

for our purposes here that whether the filing of the charge was causally related to

the work assignment presents an issue of fact sufficient to withstand summary

judgment, we are convinced that CCBCC’s unrebutted reason for the assignment

52
To make out a prima facie case of retaliation, a plaintiff must show that “(1) [he]
engaged in statutorily protected expression; (2) [he] suffered an adverse employment action; and
(3) the adverse action was causally related to the protected expression.” Wideman v. Wal-Mart
Stores, Inc., 141 F.3d 1453, 1454 (11th Cir. 1998). The challenged action must be materially
adverse from the standpoint of a reasonable employee. Burlington N. & Santa Fe Ry. Co. v.
White, ___ U.S. ___, ___, 26 S. Ct. 2405, 2415, 165 L. Ed. 2d 345 (2006). To show the adverse
action was causally related to the employee’s protected expression, the plaintiff must prove “that
the protected activity and the adverse action are not completely unrelated.” Wideman, 141 F.3d
at 1457 (quotation omitted). Although we interpret “the causal link requirement broadly,” EEOC
v. Reichhold Chem., Inc., 988 F.2d 1564, 1571 (11th Cir. 1993), merely showing that the alleged
adverse action occurred sometime after the protected expression does not establish the causation
element – for temporal progression to be enough, the events must be in “very close” proximity.
See Clark County Sch. Dist. v. Breeden, 532 U.S. 268, 273, 121 S. Ct. 1508, 1511, 149 L. Ed. 2d
509 (2001) (“the cases that accept mere temporal proximity between an employer’s knowledge of
protected activity and an adverse employment action as sufficient evidence of causality to
establish a prima facie case uniformly hold that the temporal proximity must be ‘very close.’”)
(citations omitted).

37
is unassailable.

3.

Watson claims that his discharge on April 17, 2001, was in further

retaliation for having filed the August 1, 2000 EEOC charge and because of his

race. The complaint states that

On April 27, 2001, Watson was terminated allegedly because there
were no positions available for him to fill with his physical
limitations. During this same period, three less senior white
employees received sales positions that Watson was qualified for and
could have performed. . . . Watson was terminated in retaliation for
his earlier opposition to race discrimination [, i.e., terminated for
filing the EEOC charge on August 1, 2000].

The complaint contains nothing at all that reasonably could be read as an

allegation that CCBCC terminated Watson’s employment due to race. The district

court, in its order granting summary judgment, therefore said nothing about

Watson having alleged that his firing was racially motivated. The court did,

however, recognize Watson’s claim that the firing was retaliatory.

The court held the claim legally insufficient for the same reasons it rejected

Watson’s claim that the January 2001 downgraded assignment was retaliatory:

lack of causation and a lawful, unrebutted reason for the termination. As for the

latter ground, CCBCC reasonably concluded that work that Watson could perform

given his medical restrictions was unavailable and that it was not required – under

38
Title VII – to create a job that would accommodate his limitations.53 As a

consequence, since the retaliatory downgrading claim fails for lack of proof, it

follows that the employment termination claim fails as well.

VI.

A.

If the framers of the Federal Rules of Civil Procedure could read the record

in this case – beginning with the plaintiffs’ complaint and CCBCC’s answer and

continuing to the district court’s final order granting CCBCC summary judgment –

they would roll over in their graves. In fashioning the Rules, they assumed that

complaints would be drafted as clearly and definitively as possible, so that the

defendant could understand the cause(s) of action the plaintiff was asserting and

frame a responsive pleading, and the district court, having a clear and definitive

response before it, could recognize the parties’ claims and defenses, identify the

53
Implicitly referring to the claim as quoted in the above text, the court concluded that
the record contained no support for the claim. It said that the time between Watson’s EEOC
charge and CCBCC’s alleged retaliatory response was insufficient to establish a prima facie case,
“especially in light of the legitimate nondiscriminatory reason given and the plaintiff’s failure to
effectively rebut that reason.” In other words, the record contained no proof that three white less
senior employees were given jobs that Watson was qualified to perform despite his medical
restrictions. Watson did identify, in responding to CCBCC’s motion for summary judgment,
three injured white employees who were given jobs they could perform within their medical
restrictions, but he failed to show any similarity between these employees’ situations and his – in
terms of when they were afforded the light work, what it constituted, and whether it fit his
restrictions.

39
issues of fact to be litigated, and proceed to a just result. The framers also

assumed that the lawyers appearing before the district courts would adhere to the

standards of professional responsibility and conduct, and that, as officers of the

court, would be aware that the federal courts constitute a scarce resource for

resolving disputes and that their failure to adhere to these standards would likely

yield countless untoward, and totally unacceptable, consequences.

This case confounds these assumptions. The complaint is a model

“shotgun” pleading of the sort this court has been roundly, repeatedly, and

consistently condemning for years, long before this lawsuit was filed.54 And the

defendant’s answer is no better. Both pleadings were drafted by AV rated law

firms whose appearances in district courts of this circuit, and in this court, have

54
See, e.g., United States ex el. Atkins v. McInteer, 470 F.3d 1350, 1354 n.6 (11th Cir.
2006); M.T.V. v. DeKalb County Sch. Dist., 446 F.3d 1153, 1156 n.1 (11th Cir. 2006);
Ambrosia Coal and Constr. Co. v. Morales, 368 F.3d 1320, 1330 n.22 (11th Cir. 2004); Strategic
Income Fund, L.L.C. v. Spear, Leeds & Kellogg Corp., 305 F.3d 1293, 1296 nn.9-10 (11th Cir.
2002); Byrne v. Nezhat, 261 F.3d 1075, 1128-34 (11th Cir. 2001); Magluta v. Samples, 256 F.3d
1282 (11th Cir. 2001); BMC Indus., Inc. v. Barth Indus., Inc., 160 F.3d 1322, 1326-27 n.6 (11th
Cir. 1998); GJR Invs., Inc. v. County of Escambia, 132 F.3d 1359, 1368 (11th Cir. 1998);
Cramer v. Florida, 117 F.3d 1258, 1263 (11th Cir. 1997); Ibrahimi v. City of Huntsville Bd. of
Educ., 114 F.3d 162 passim (11th Cir. 1997); Anderson v. Dist. Bd. of Trustees of Cent. Fla.
Cmty. Coll., 77 F.3d 364, 366-367 (11th Cir. 1996); Beckwith v. City of Daytona Beach Shores,
58 F.3d 1554, 1567 (11th Cir. 1995); Cesnik v. Edgewood Baptist Church, 88 F.3d 902, 905
(11th Cir. 1996); Oladeinde v. City of Birmingham, 963 F.2d 1481, 1483-84 (11th Cir. 1992);
Pelletier v. Zweifel, 921 F.2d 1465, 1518 (11th Cir. 1991); T.D.S. Inc. v. Shelby Mut. Ins. Co.,
760 F.2d 1520, 1543-44 n.14 (11th Cir. 1986) (Tjoflat, J., dissenting). This list is just a teaser –
since 1985 we have explicitly condemned shotgun pleadings upward of fifty times.

40
been ubiquitous.55 The steps counsel took in litigating their respective clients’

interests – the pleading strategies they employed – were not taken out of

ignorance; they were deliberate, calculated.

Plaintiffs’ complaint, first amended complaint, and second amended

complaint are nearly identical, each containing three counts. In part I.B, supra, we

quoted from Count I what plaintiffs were contending: race discrimination in “pay,

raises, benefits, ability to advance, and right to be free of racial discrimination,

harassment and intimidation, and other terms and conditions of employment,”56 all

in violation of Title VII. This all-encompassing discrimination gave the eight

named plaintiffs (and the unnamed members of their class) untold causes of

action, all bunched together in one count contrary to the requirements of Federal

Rules of Civil Procedure 10(b).57 With one exception – the “ability to advance,”

55
We do not know how many times these law firms have appeared in district courts of
this circuit. What we do know is that, over the past decade, the firm (whose name has changed
from time to time) representing plaintiffs has appeared in this court in 247 appeals. CCBCC’s
principal defense counsel is a member of a firm that has appeared in this court in 195 appeals.
See generally, http://www.martindale.com./Ogletree-Deakins-Nash-Smoak-Stewart/law-firm-
22739-peer-review-ratings.htm; http://www.martindale.com/Wiggins-Childs-Quinn-
Pantazis/law-firm-22230-people.htm.
56
When read as a whole, Count I, in its 121 paragraphs of allegations, portrayed CCBCC
as a company that practices race discrimination from top to bottom, in every aspect of the terms
and conditions of plaintiffs’ employment. In short, race discrimination is the company’s culture.
57
Rule 8(a)(2), as we observed in part IV.B, supra, requires a complaint to contain “a
short and plain statement of the claim showing that the pleader is entitled to relief.” Rule 10(b)
instructs that “Each claim founded upon a separate transaction or occurrence . . . shall be stated
in a separate count . . . whenever a separation facilitates the clear presentation of the matters set

41
which became the foundation for plaintiffs’ “promotion” claims – Count I failed

explicitly to link a particular plaintiff to a particular cause of action. Count II

incorporated the allegations of Count I and added nothing new except to allege

that “[t]he effect of the defendant’s discrimination as outlined [in Count I] has

been to deprive the plaintiffs of the same right to make and enforce contracts as is

enjoyed by similarly-situated white persons in violation of 42 U.S.C. § 1981 and

1981(a).” Thus, as in Count I, there was nothing in Count II to indicate which

plaintiff possessed which cause(s) of action.58

No competent lawyer – whether skilled in Title VII litigation or not59 –

forth.” Fed. R. Civ. P. 10(b) (emphasis added.). Plaintiffs’ complaint failed to conform to these
instructions. The complaint contained in one count a host of claims based on discrete acts of
discrimination committed by CCBCC against different plaintiffs at different times. As we
explained in Fikes v. City of Daphne, 79 F.3d 1079, 1082-83 (11th Cir. 1996),

These rules work together to require the pleader to present his claims discretely
and succinctly, so that his adversary can discern what he is claiming and frame a
responsive pleading, the court can determine which facts support which claims
and whether the plaintiff has stated any claims upon which relief can be granted,
and, at trial, the court can determine that evidence which is relevant and that
which is not.

Id. at 1082-83 (quoting T.D.S. v. Shelby Mut. Ins. Co., 760 F.2d 1520, 1543 n.14 (11th Cir.1985)
(Tjoflat, J., dissenting)).
58
The same was true of Count III, which after incorporating Counts I and II en toto,
sought compensatory and punitive damages under Alabama tort law.
59
According to their representations in Martindale-Hubbell, all the lawyers in this case
are skilled in civil litigation, including employment litigation. See generally,
http://www.martindale.com.

42
could compose an answer to these sweeping and multifaceted acts of

discrimination that would be in keeping with what the framers of the Rules

envisioned in fashioning Rule 8(b).60 Yet, CCBCC’s attorneys framed one. They

used the same shotgun strategy plaintiffs had employed. Their answer contained

fourteen defenses. The first defense responded to the complaint paragraph by

paragraph, admitting or denying the allegations thereof. The second through the

fourteenth defenses were affirmative defenses, and except for the seventh defense,

consisted of only one sentence. These affirmative defenses did not respond to

specific causes of action, because the drafter of the answer could not identify the

specific causes of action each named plaintiff was purporting to allege.

Consequently, the affirmative defenses referred to none of these plaintiffs by

name.61

Faced with these pleadings, how the district court could have made heads or

tails out of plaintiffs’ allegations, and which affirmative defenses applied to which

60
Rule 8(b)(1) states, in pertinent part: “[A] party must: (A) state in short and plain terms
its defenses to each claim asserted against it; and (B) admit or deny the allegations asserted
against it by an opposing party.” Fed. R. Civ. P. 8(b)(1).
61
Examples of defense counsel’s apparent inability to comprehend exactly what claims a
particular named plaintiff was presenting are CCBCC’s ninth, tenth, and thirteen defenses. We
refer to the ninth and tenth defenses in note 10, supra, dealing with the application of section 301
of the Labor-Management Relations Act, where CCBCC referred to “some of the claims” and
“those claims” without identifying any of the claims or plaintiffs asserting them. The thirteenth
defense was equally ambiguous. It stated that: “Recovery for some or all of the Plaintiffs’ claims
is barred by the doctrine of laches.”

43
causes of action, is beyond us. It took several rounds of pleadings, namely

CCBCC’s Rule 12(c) motions and the parties’ memoranda (dealing with those

motions and responding to court orders requesting briefing on other points) for the

court even to begin the process of narrowing the issues. In the end, as our

preceding analysis of plaintiffs’ arguments discloses, the court missed some

claims altogether.62 Plaintiffs could have brought this to the court’s attention via a

motion to alter or amend judgment,63 but chose, instead, to stand pat and leave the

matter to us.64

B.

The unacceptable consequences of shotgun pleading are many. First, and

perhaps foremost, shotgun pleading inexorably broadens the scope of discovery,

much of which may be unnecessary.65 Who benefits from that? Certainly not the

62
CCBCC implicitly acknowledges in its brief that the court appears to have ignored
Jackson’s claims, which were not time-barred.
63
See Fed. R. Civ. P. 59(e).
64
Plaintiffs argued in their opening brief that the court erred in failing to recognize the
claims they briefed in opposition to CCBCC’s motion for summary judgment. Plaintiffs could
have brought those claims to the court’s attention via a motion for leave to amend their complaint
pursuant to Fed. R. Civ. P. 15(a) before the court took CCBCC’s motion under advisement.
They evidently believed that such a motion would have been denied as untimely.
65
According to the declaration of Gregory P. McGuire, CCBCC’s lead counsel, which
was filed in relation to CCBCC’s motion for summary judgment, the fees charged by the court
reporter for “all or any part of the transcript necessarily obtained for use in the case” amounted to
$11,118.60.

44
defendant, especially if it compensates its counsel by the hour. Certainly not the

plaintiff – unless his lawyer is trying to attach some value to a frivolous claim. In

time, the defendant will ask: “when is all of this to end?” Unless the court has

intervened and required the attorneys to replead the case, unless the court has

definitively identified the parties’ claims and defenses and has squeezed the case

down to its bare essentials, defense counsel will be unable to give the client an

accurate answer. Plaintiffs’ counsel knows this, of course, and that the defendant

will want out of the case, to settle. So, the case settles, and the shotgun complaint

has performed its designed service. So has defense counsel’s acceptance of the

shotgun complaint as an appropriate pleading. As we have observed,

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

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

Second, in addition to delaying a just disposition of the case at the undue

expense of one or both of the parties, shotgun pleadings, if tolerated by the court,

lessen the time and resources the court has available to reach and dispose of the

45
cases and litigants waiting to be heard.66 This is especially harmful to those who

have no other forum for the vindication of their rights.

Third, shotgun pleadings wreak havoc on appellate court dockets. The case

at hand is Exhibit A. Due to the nebulous pleadings in this case and the district

court’s failure to strip the case down and identify each claim and defense, we had

to undertake that task from scratch. The briefs and oral argument were of no use

until we scoured the record – including the memoranda the parties gave the district

court in support of or in opposition to CCBCC’s motions for judgment on the

pleadings and, subsequently, for summary judgment – to determine whether what

the parties stated in their respective briefs was accurate.

The unvarnished truth is that this court puts no credence in briefs written

against a backdrop of a case disposed of on shotgun pleadings. We sift through

the record for anything that will corroborate a brief’s representation; it is not until

66
Shotgun pleadings delay cases by:

Wasting scarce judicial and parajudicial resources imped[ing] the due
administration of justice, and, in a very real sense, amount to obstruction of
justice. Although obstruction of justice is typically discussed in the context of
criminal contempt, the concept informs the rules of law – both substantive and
procedural – that have been devised to protect the courts and litigants (and
therefore the public) from abusive litigation tactics, like shotgun pleadings. If use
of an abusive tactic is deliberate and actually impedes the orderly litigation of the
case, to wit: obstructs justice, the perpetrator could be cited for criminal contempt.

Byrne, 261 F.3d at 1131-32 (11th Cir. 1984) (alteration, quotation, and citation omitted).

46
that task is finished that we look to the briefs for assistance – namely, to determine

whether the appellant has preserved the issues its opening brief presents. In this

case, after searching the record, we were able to discard much of it as pure waste

and thus substantially reduce the length of this opinion. Had we not approached

the appeal in this manner, there is no telling how many mistakes we might have

made in identifying plaintiffs’ claims, the district court’s treatment of those claims,

and the issues plaintiffs preserved for appeal.

Fourth, the mischief shotgun pleadings causes undermines the public’s

respect for the courts – the ability of the courts to process efficiently,

economically, and fairly the business placed before them.67 At an increasing rate,

civil litigants are avoiding the federal district courts; they go elsewhere, to other

fora, for the resolution of their disputes, especially complicated commercial

67
The American Bar Association Model Rules of Professional Conduct, Rule 3.2, and
the Alabama Rules of Professional Conduct, Rule 3.2, both provide that, “A lawyer shall make
reasonable efforts to expedite litigation consistent with the interests of the client.” This comment
underscores both rules:

Dilatory practices bring the administration of justice into disrepute. . . . It is not a
justification that similar conduct is often tolerated by the bench and bar. The
question is whether a competent lawyer acting in good faith would regard the
course of action as having some substantial purpose other than delay. Realizing
financial or other benefit from otherwise improper delay in litigation is not a
legitimate interest of the client.

Ala. Rules of Prof’l Conduct R. 3.2 cmt.

47
disputes.68 The district courts’ civil caseloads reflect this. The contemporary

litigation culture has effectively reduced the federal court civil dockets,

nationwide.69 This is not surprising. The exponentially increasing transaction

costs the parties must bear in order to resolve their civil disputes in the federal

district courts is driving litigants away, especially those involved in complex

commercial matters. This has a negative effect on the development of the rule of

law in the federal courts. When issues that ought to be presented to the courts for

clarification, and to stabilize the rule of law, are removed to non-judicial fora for

resolution, the public bears the cost – in the form of more litigation and a judiciary

unable to handle it.

Fifth, in Title VII cases, shotgun pleadings undercut the purpose of

Congress’s enactment of Title VII – to bring peace and equity to the workplace. It

requires no subtle analysis to conclude that the wrangling and pure bitterness these

pleadings engender does not foster good employer-employee relationships.

C.

68
JAMS provides one of these alternative forums. It advertises as the nations largest
provider of ADR services and has a cadre of arbitrators and mediators that includes 147 former
judges. See http://www.jamsadr.com/neutrals/neutrals.asp.
69
Shotgun pleadings are a significant part of the contemporary litigation culture. They
are fueled in no small part by the lawyers’ fear that if they do not include everything but the
kitchen sink in their pleadings, they may be sued for malpractice.

48
 What happened in this case was easily avoidable – by a straightforward

application of the Rules of Civil Procedure. First, defense counsel, faced with a

complaint purporting to combine in one count multiple claims of eight plaintiffs,

should have moved the court for a more definite statement pursuant to Federal

Rule of Civil Procedure 12(e).70 The court would have granted the motion –

“[w]here, as here, the plaintiff asserts multiple claims for relief, a more definite

statement, if properly drawn, will present each claim for relief in a separate count,

as required by Rule 10(b).” Anderson v. Dist. Bd. of Trs. of Cent. Fla. Cmty.

Coll., 77 F.3d 364, 366 (11th Cir. 1996). But counsel chose to reply in kind – by

fashioning affirmative defenses that failed to respond explicitly to the specific

claims plaintiffs were independently asserting. In light of defense counsel’s

failure to request a repleader, “the court, acting sua sponte, should have struck the

plaintiff’s complaint, and the defendants’ answer, and instructed plaintiff’s

counsel to file a more definite statement.” Id. at 367. The necessity for doing so

70
Rule 12(e) states in pertinent part:

A party may move for a more definite statement of a pleading to which a
responsive pleading is allowed but which is so vague or ambiguous that the party
cannot reasonably prepare a response. The motion must . . . point out the defects
complained of and the details desired. If the court orders a more definite
statement and the order is not obeyed within 10 days after notice of the order or
within the time the court sets, the court may strike the pleading or issue any other
appropriate order.

Fed. R. Civ. P. 12(e).

49
should have become starkly apparent on reading the complaint.71

The need for intervention was necessary for another reason, apart from the

mess the shotgun pleadings were creating: plaintiffs’ initial complaint, like its

successors, appeared to allege a class action. Where a complaint alleges that the

employer is engaging in a pattern or practice of race discrimination against a class

of similarly situated employees and seeks declaratory and injunctive relief, the

court must determine without delay whether plaintiffs are bringing a Rule 23(b)

class action or not.72 The rights of the putative unnamed class members may be

affected – one way or another. In this case, had the court inquired of plaintiffs’

counsel, and counsel stated that plaintiffs were not bringing a class action, the

court would have entered an order stating explicitly that the case was not being

prosecuted as a class action.73 This would have informed the putative class

71
Moreover, in the long run, “the ‘judicial work that results from shotgun pleadings is far
more time consuming than the work required up front to prevent the case from proceeding
beyond the pleadings until the issues are reasonably well defined.’” Byrne, 261 F.3d at 1130
n.106 (quoting Johnson Enter. of Jacksonville v. FPL Group, Inc., 162 F.3d 1290, 1333 (11th
Cir. 1998)).
72
As stated in Rule 23(c)(1)(A), “When a person sues . . . as a representative of a class,
the court must – at an early practical time – determine by order whether to certify the action as a
class action.”
73
We recognize that in dismissing plaintiffs’ pattern or practice claim on the ground that
a pattern or practice claim cannot be brought outside the class action context, the court implicitly
held that this was not a class action case. The court made its ruling in response to CCBCC’s
motion for judgment on the pleadings. Absent such a motion, query whether the court would
have addressed the class action issue before ruling on CCBCC’s motion for summary judgment.

50
members that if they had any claims against CCBCC, they would have to pursue

them on their own.

D.

Title VII authorizes the court to award “a reasonable attorney’s fee” to the

prevailing party in a Title VII case.74 This authority extends to the court of

appeals. Here, CCBCC is the prevailing party with the exception of two of

Jackson’s claims, which are being remanded for further proceedings. As to those

claims, Jackson is the prevailing party. Given the manner in which both sides

chose to litigate this case in the district court, a strategy that complicated our task

to no end, we will deny a request for attorney’s fees from either side.

VII.

For the reasons we have stated, the judgment of the district court is affirmed

as to all claims except the two Terry Jackson claims we remand for further

proceedings.

AFFIRMED, in part; VACATED, in part; and REMANDED.

74
“In any action or proceeding under [Title VII] the court, in its discretion, may allow the
prevailing party . . . a reasonable attorney’s fee (including expert fees) as part of the costs . . ..”
42 U.S.C. § 2000e-(5)(k).

51