Brown v. Alabama Department of Transportation

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
FEBRUARY 23, 2010
No. 08-14371
JOHN LEY
________________________
CLERK

D. C. Docket No. 03-03132-CV-UWC

GENEVA BROWN,

Plaintiff-Appellee,

versus

ALABAMA DEPARTMENT OF TRANSPORTATION, et al.,

Defendants-Appellants.

________________________

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

(February 23, 2010)

Before MARCUS, FAY and ANDERSON, Circuit Judges.

MARCUS, Circuit Judge:
 This appeal arises from a Title VII claim brought by African-American civil

engineer Geneva Brown against her employer, the Alabama Department of

Transportation (“the Department”).1 Brown claimed that the Department denied

her nine separate promotions on account of her race, or for retaliatory reasons,

between 2000 and 2005. Following a five-day trial, a jury sitting in the Northern

District of Alabama entered a verdict in Brown’s favor as to her claims of

discrimination and retaliation, and awarded her backpay on the basis of each of the

nine challenged promotions.

On appeal, the Department argues that the district court erred in denying its

motion for judgment as a matter of law and remittitur. It claims that the evidence

of discrimination and retaliation was insufficient with respect to all of the

promotions, and that even if the evidence was sufficient as to some, the backpay

award was excessive insofar as it took each of the promotions into account. The

Department also challenges the terms of the district court’s permanent injunction,

which ordered that Brown be promoted to the position of Division Engineer for the

Third Division and provided for other interim relief. The Department claims that

1
Brown was joined in the district court by co-plaintiff Rosyln Cook-Deyampert, an African-
American civil engineer who claimed that she was denied promotions on the basis of her race and
ultimately terminated for similar reasons. Cook-Deyampert settled her grievance with the
Department and is not a party to this appeal. The Department, for its part, is joined in this appeal
by two of its employees as co-defendants -- Fifth Division Engineer L. Dee Rowe and Department
of Transportation Director Joe McInnes -- who were sued in their official capacities.
2
the injunction failed adequately to specify the position that Brown would hold

pending her promotion to the Third Division Engineer position, exceeded the scope

of the district court’s remedial powers under Title VII, and required the

Department to violate Alabama law by placing Brown in a position for which she

was legally unqualified.

After thorough review, we conclude that the evidence of discrimination and

retaliation was sufficient to support only three of the nine challenged promotional

decisions, and that the backpay award therefore must be recalculated. We also

hold that the injunction, while clear in most respects, failed to specify adequately

the interim position that Brown was to hold pending a vacancy in the Third

Division Engineer position. Accordingly, we affirm in part, reverse in part, and

remand for further proceedings consistent with this opinion.

I.

The relevant history of this case begins long before the promotional

decisions challenged here by Geneva Brown, and even considerably before Brown

joined the ranks of the Alabama Department of Transportation in 1977. It stretches

back to at least June 1968, when the United States commenced a large civil rights

action known as the Frazer litigation against six Alabama state agencies. See

United States ex. rel. Mitchell v. Frazer (“Frazer I”), 317 F. Supp. 1079 (M.D. Ala.

1970). Although not one of the original defendants, the Department of
3
Transportation (then the State Highway Department, see Ala. Code. § 23-1-20) was

joined not long after the initial filing, along with every other state agency in

Alabama save for the Department of Public Safety. See United States v. Frazer

(“Frazer II”), Civ. No. 2709-N, 1976 WL 729 (M.D. Ala. Aug. 20, 1976).

As a prelude to Frazer, federal officials repeatedly but unsuccessfully had

urged Alabama to adopt a regulation expressly prohibiting discrimination on the

basis of race. Frazer I, 317 F. Supp. at 1084-85. Alabama had fallen behind other

states in doing so, id. at 1085, and indeed, its state-wide hiring and promotion

system vested in “the appointing officer . . . the right to reject an applicant because

of his race.” Id. With little appreciable progress in addressing discrimination, the

federal government filed suit.

After reviewing a substantial corpus of evidence, the district court in Frazer

found that the six state agencies named as defendants in the original complaint had

engaged in extensive pattern-and-practice workplace discrimination against

African-American candidates on the basis of their race. Id. at 1086-90. The

district court identified, inter alia, the following discriminatory practices:

repeatedly passing over African-American candidates for open positions, usually

without ever contacting or interviewing them, while giving white applicants with

equal or inferior qualifications numerous contacts, interviews, and job offers, id. at

1986-87; placing African-American candidates on the inactive part of the
4
employment register from which candidates were drawn, without ever giving them

notice of such placement or ever again certifying them for vacant positions, id. at

1087; enforcing a policy of keeping all African-American employees within certain

clerical classifications, id. at 1088; and recruiting almost entirely from

predominantly white high schools and colleges, to the exclusion of all but a few

predominantly black institutions, id. at 1089.

The result of these practices, the district court found, was a staggeringly low

number of African-Americans in the ranks of the six defendant agencies. Only one

out of a thousand of the defendants’ clerical employees was African-American --

despite an abundance of qualified African-American candidates and a pressing

need to fill clerical vacancies -- and only 26 of 1,104 professional or semi-

professional employees were African-American. Id. at 1087. With the goal of

remedying the disproportionately low numbers of African-Americans in the civil

service ranks, the district court entered a broad injunction targeting each of the

identified discriminatory practices. Id. at 1090-93.

Six years later, following the joinder of nearly every state agency in

Alabama, the district court reviewed additional evidence of discrimination --

including evidence from the Department of Transportation -- as well as indications

that all of the defendants were violating the earlier injunction. Frazer II, 1976 WL

729, at *1. This time, the district court found that “systematic discrimination
5
against black citizens of Alabama ha[d] been as extensive among the new

defendants as it had been among the original defendants.” Id. It also found that

the State’s use of employment tests bearing a questionable relationship to job

qualifications had severely prejudiced African-American employees, and that “the

new defendant state agencies ha[d] generally avoided compliance with the decrees

in this case by examining job registers maintained by the Personnel Department of

the State of Alabama and by requesting certificates of eligibility only at times

when no blacks were available for certification.” Id. at *4. On August 20, 1976,

the district court entered a second sweeping injunction targeting the discriminatory

practices identified in both the first case and its successor. Id. at *6-8.

Around this time, Geneva Brown was a student in the civil engineering

program at the University of Alabama, where she eventually completed three and a

half years towards her civil engineering degree before quitting the program when

her mother became ill and died.2 She was hired by the Department of

Transportation in 1977, directly on the heels of the second Frazier injunction.

With the help of the Frazer orders, she became among the first African-Americans

in the civil engineering line-of-promotion. Throughout her long tenure at the

Department, she rose through all levels of the Engineering Assistant classification

2
We recite the evidence in a light most favorable to Geneva Brown, who prevailed at
trial. Webb-Edwards v. Orange County Sheriff’s Office, 525 F.3d 1013, 1029 (11th Cir. 2008).
6
series and ultimately to the position of Civil Engineer in 1988, and of Civil

Engineer Manager in 1998. But the discrimination that drove the Frazer litigation

did not end with her hiring, and instead continued to severely hamper her efforts at

promotion.

Brown became a class member in a second discrimination lawsuit filed in

1985 by Johnny Reynolds and other African-Americans alleging that the

Department of Transportation continued to discriminate on the basis of race, in

violation of the Frazer orders. She was an active and vocal participant in the

Reynolds litigation, testifying in various proceedings on at least four occasions

between 1992 and 2004. In 1994, the parties in Reynolds reached a partial

settlement and entered into a consent decree providing for extensive injunctive

relief.3 Brown, however, continued to experience difficulties in her effort to

3
This relief included, inter alia: an expansive recruitment program geared towards
African-American candidates; limitations on the use of minimum job qualifications and a
requirement that any objective qualifications be validated according to standardized procedures;
strict limitations on the procedures by which a candidate’s name could be purged from the
employment registers; a requirement that the Department request certificates of eligible
candidates in a prompt and consistent fashion; an explicit prohibition on avoiding black
candidates by cancelling requests for certifications of eligible candidates, returning
certifications, requesting the abolition of registers of eligible candidates, delaying requests for
certifications, or by other means; and a requirement that blacks be included, to the extent
practicable, on interview teams and among decisionmakers. Reynolds v. Ala. Dep’t of Transp.,
Civ. A. No. 85-T-665-N, 1994 WL 899259 (M.D. Ala. Mar. 16, 2004). The fallout of the
Reynolds litigation, and in particular the consent decree, was considerable, and has resulted in a
number of published decisions by this court. See Reynolds v. McInnes, 380 F.3d 1303 (11th Cir.
2004) (“Reynolds VIII”); Reynolds v. McInnes, 338 F.3d 1221 (11th Cir. 2003) (“Reynolds
VII”); Reynolds v. McInnes, 338 F.3d 1201 (11th Cir. 2003) (“Reynolds VI”); Reynolds v.
Butts, 312 F.3d 1247 (11th Cir. 2002) (“Reynolds V”); Davis v. Butts, 290 F.3d 1297, 1300
(11th Cir. 2002) (“Reynolds IV”); Reynolds v. Roberts, 251 F.3d 1350 (11th Cir. 2001)
7
advance to positions in two upper-level engineering classifications -- the Civil

Engineer Administrator (“CEA”) and Civil Engineer Senior Administrator

(“CESA”). She filed the Title VII discrimination and retaliation action underlying

this appeal in 2003, and the cause was tried to a jury over three days in September

2006. Beyond the essential background to Brown’s claims, which included much

of the history of the Frazer and Reynolds litigation, the following relevant facts

emerged at trial.

At least on paper, promotion at the Department follows a series of

mandatory steps, essentially all of which were in place at the time of the events in

question here. To fill vacancies within various employment classifications, the

Alabama State Personnel Department (“SPD”) maintains registers of employees

who have demonstrated their qualification for the position, typically in the form of

a qualifying test score. From the appropriate register, SPD draws a list known as a

Certificate of Eligibles (“Certificate”), which contains the top ten candidates

ranked either in bands of similar scores or from the highest score to the lowest.

The Certificate is sent to the Department, whose choice of candidates is limited to

(“Reynolds III”); Reynolds v. Roberts, 207 F.3d 1288 (11th Cir. 2000) (“Reynolds II”);
Reynolds v. Roberts, 202 F.3d 1303 (11th Cir. 2000) (“Reynolds I”). In Reynolds II, we held
that “if in the future . . . any employee . . . suffers racial discrimination in the work place, the
employee’s remedy (if the grievance cannot be resolved) will be to seek relief in a separate
lawsuit, brought in state or federal court.” 207 F.3d at 1301 (emphasis omitted). The instant
lawsuit followed procedurally from that holding.
8
those listed on the Certificate. The Department must then constitute a bi-racial

interviewing team, send letters of availability to each applicant on the Certificate,

interview each interested candidate by asking the same set of questions and rating

the answers, and recommend a candidate to the appropriate Bureau Chief or

Division Engineer for approval. The Department’s Compliance Section verifies

the implementation of these safeguards.

Brown claimed that three primary forms of discrimination nonetheless

ensured that she was repeatedly passed over in favor of white applicants. First, she

claimed that the Department, through the SPD, manipulated the registers of

qualified candidates in order to prevent black candidates from being hired. She

testified generally at trial that employees’ names were known to disappear from

and reappear on the registers, and specifically that her name was removed from the

CEA register in late 2003, despite her repeated efforts to ensure that her

availability remain listed essentially as statewide. Although Brown’s name

reappeared on the register in 2004, the Department had filled the Assistant Bureau

Chief position that she sought during the period when her name had been removed

from the list, despite her request to suspend the hiring process and investigate the

unexplained disappearance of her name. As Brown reminded the jury in

connection with this incident, the Department had been found in Frazer to have

“generally avoided compliance with the [Frazer] decrees . . . by examining job
9
registers . . . and . . . requesting certificates of eligibility only at times when no

blacks were available for certification,” id. at *4, and it remained subject to an

injunction specifically prohibiting that practice.

Second, Brown claimed that the Department manipulated seemingly

legitimate test scores and employee qualifications by placing favored white

employees in “acting” or out-of-classification assignments, giving them new-found

experience that boosted their scores and made them appear better qualified when

interviewed.4 Department witness and Chief Engineer Donald Vaughn conceded

that the experience gained through an acting position is perhaps the best training an

employee can receive, both in terms of test scores (the tests are designed to

measure the skills performed on the job) and the appearance of qualification.

Moreover, Vaughn himself could not recall any instance in which an employee

who had been assigned on an acting basis was not later appointed permanently.

Notably, Brown was never given the benefit of any out-of-classification experience

or training.

Finally, Brown testified that the Department permitted outright

discrimination or retaliation in employment decisions. She claimed that following

an interview for one position in late 2003, she was taken aside by a Department

4
This practice was the subject of the Reynolds injunction, which required that acting
positions be rotated so that minorities, too, could enjoy their benefits.
10
manager by the name of Camp, who suggested that she would not receive the

subject promotion -- or any other promotion -- because (1) the Division Engineer

for one of the divisions to which she was applying “did not want [her] there,” (2)

the other divisions had been instructed to “get the minorities . . . off of th[e]

register,” and (3), her participation in Reynolds had caused her to be “labeled as a

troublemaker.” The Department called no witnesses to undermine this testimony.

Brown also testified that she was discouraged, to the extent of being

harassed, from accepting a promotion to the position of Pavement Management

Engineer, a CEA position that she was offered in early 2004 in the Materials and

Tests Bureau, and that even after she accepted the position, further harassment

caused her to rescind her acceptance. The record showed that the position in

question had been kept open for nearly two years after the vacancy had been

created, during which time it was held by Scott George on an acting, out-of-

classification basis. When the vacancy was to be filled on a permanent basis,

Brown’s name appeared on the Certificate, almost certainly above that of George.

Brown testified that under the Frazer rule, she would have to decline the position

before the Department could offer it to a lower-ranked white candidate.5

5
The injunction in Frazer I dictated that “Negro applicants . . . be appointed to positions
other than custodial, domestic, laborer or laboratory aide, when said Negro applicants are listed
on a Certification of Eligibles, unless higher-ranking white applicants on the certificate are
appointed to fill the vacancy (or all the vacancies) in the listed position, or unless the defendants
determine that the Negro applicant is not qualified to perform the duties of the position, or is
11
 Brown was offered the job, but she then received a phone call on February

12, 2004, from Bureau Chief Larry Lockett, who, in Brown’s words, set about

“trying to discourage me.” Lockett reminded Brown that she “would not have any

training, . . . would be on [her] own,” and “from day one when [she] walked in that

office, [would be] expected to know everything that . . . was needed for that

position.” Lockett further said “that he had a preference for [Scott George,]

who[m] he wanted to fill that position,” that “he was considered a mean

supervisor,” and that Brown “would be starting [her] career all over when [she]

should be ending it.” Brown initially was not discouraged, and she accepted the

position on February 27, 2004. Nonetheless, because of the claimed intimidation,

the potential for hostility on the job, and Lockett’s expressed preference for

George, Brown rescinded her acceptance just two weeks later. At that point,

Lockett was free to hire another candidate off of the Certificate, and Scott George

ultimately was appointed to the Pavement Management Engineer position.

Brown also presented general evidence indicating that racial bias influenced

the Department’s hiring processes during the relevant period. Thus, for example,

there was testimony suggesting that the Department was hostile towards African-

Americans who sought to advance their careers under the protection of the

otherwise not fit for the position.” 317 F. Supp. at 1091. The district court in Frazer II in turn
ordered that, with several exceptions not relevant here, “all provisions of the decree entered in
[Frazer I] on July 28, 1970 . . . [would] remain in full force and effect.” 1976 WL 729, at *6.
12
Reynolds consent decree. Around the time a new Transportation Director, Joe

McInnes, was appointed in 2003, African-American Executive Assistant

Transportation Director Ron Green was effectively replaced by a newly hired

white employee, Dan Morris, who had no history at the Department. Also around

that time, at least three of the other six African-American Bureau Chiefs were

removed from their positions, including Curtis Pierce from the Professional

Engineering Education and Development Bureau, Alvena Williams from the

Internal Audits Bureau, and Brown’s co-plaintiff Roslyn Cook-Deyampert from

the Training Bureau. The evidence established that the net result was a significant

reduction in the number of black employees in the Department’s upper ranks, and

that those who still held upper-level positions -- such as Green and Jeffrey Brown -

- had considerably reduced duties and staff.

Brown claimed that some combination of the forms of discrimination she

outlined led to her being denied nine different promotions on the basis of her race.

The promotions -- all of them going to white employees -- were as follows:

-- L. Dee Rowe’s promotion as Division Engineer for the Fifth
Division on March 25, 2000;

-- Randall Estes’ promotion as Division Engineer for the Sixth
Division on May 31, 2003;

-- Robin Rhoden’s promotion as Assistant Division Engineer for the
Fifth Division on December 13, 2003;

13
 -- Willis Reynolds’ promotion as Assistant Division Engineer for the
Fifth Division on December 13, 2003;

-- Charles Tolbert’s promotion as County Transportation Engineer for
the Ninth Division on December 27, 2003;

-- Mike Mahaffey’s promotion as Assistant Division Engineer for the
Third Division on March 20, 2004;

-- Stacy Glass’s promotion as Assistant Bureau Chief in the
Maintenance Bureau on March 20, 2004;

-- Ronnie Baldwin’s promotion as Bureau Chief for the Bureau of
Office Engineer on March 19, 2005; and

-- Brian Davis’s promotion as Division Engineer for the Third
Division on September 17, 2005.

At the close of all of the evidence, the Department moved for judgment as a

matter of law. The district court summarily denied the motion, and the jury was

asked to answer the following questions:

1. “Do you find that the Defendants probably denied promotion(s) to
the Plaintiff Geneva Brown because of her race?”

2. “Do you find that the Defendants probably retaliated against
Plaintiff Geneva Brown because of her engagement in protected
activities?”

3. “What compensatory damages is Plaintiff Geneva Brown entitled
to?”

Verdict Form, at 1-2. The jury answered the first two general questions in the

affirmative, and determined that Brown was entitled to $65,697.65 in backpay and

$25,000.00 for mental anguish. For backpay, the jury adopted the figure provided
14
in Brown’s backpay table, which represented the period from May 30, 2001, to

September 13, 2006.

The Department renewed its motion for judgment as a matter of law and

moved to vacate or remit the backpay award. The district court denied the motions

without opinion. It entered a permanent injunction effectuating the jury’s backpay

award and ordering that Brown be given a “comparable position” pending her

permanent promotion to the position of Division Engineer for the Third Division.

The Department in turn moved for relief from the judgment, arguing that the

district court’s injunction did not adequately explain the meaning of the interim

“comparable position” that Brown was to receive, granted relief not authorized

pursuant to Title VII, and required the Department to violate Alabama law by

promoting Brown to a position for which she was supposedly unqualified as a

matter of law. The district court denied this motion, too, and the Department

presented this timely appeal.

II.

The Department first contends that the evidence did not support a finding of

discrimination or retaliation as to any of the nine promotions that Brown claims to

have been denied, and that the backpay award was therefore unsupported. More

particularly, the Department claims that the district court erred in denying its

motion for judgment as a matter of law with respect to the verdicts and for vacation
15
or remittitur of the backpay award.

We review de novo the denial of a motion for judgment as a matter of law,

Combs v. Plantation Patterns, 106 F.3d 1519, 1526 (11th Cir. 1997), applying the

same standard as the district court, Telecom. Technical Servs., Inc. v. Rolm Co.,

388 F.3d 820, 830 (11th Cir. 2004). Under Federal Rule of Civil Procedure 50,

judgment as a matter of law is appropriate only if “the facts and inferences point

[so] overwhelmingly in favor of one party . . . that reasonable people could not

arrive at a contrary verdict.” Combs, 106 F.3d at 1526 (citation omitted). In

making that determination, we review all of the evidence in the record, but we

must “draw all reasonable inferences in favor of the nonmoving party, and . . . may

not make credibility determinations or weigh the evidence.” Reeves v. Sanderson

Plumbing Prods., Inc., 530 U.S. 133, 150 (2000). Those are the jury’s functions.

Id. at 150-51. Thus, we “give credence to . . . evidence supporting the moving

party that is uncontradicted and unimpeached, at least to the extent that that

evidence comes from disinterested witnesses.” Id. at 151 (citations and quotation

marks omitted).

We review for a “clear abuse of discretion” the district court’s denial of a

motion for remittitur. Griffin v. City of Opa-Locka, 261 F.3d 1295, 1315 (11th

Cir. 2001). “A district court abuses its discretion if it applies an incorrect legal

standard, applies the law in an unreasonable or incorrect manner, follows improper
16
procedures in making a determination, or makes findings of fact that are clearly

erroneous.” Citizens for Police Accountability Political Comm. v. Browning, 572

F.3d 1213, 1216-17 (11th Cir. 2009).

A.

Brown claimed that the Department’s denial of the nine identified

promotions was discriminatory and violated Title VII, which makes it unlawful for

an employer to “discriminate against any individual with respect to his

compensation, terms, conditions, or privileges of employment, because of such

individual’s race.” 42 U.S.C. § 2000e-2(a)(1).6 A plaintiff bears the burden of

establishing a prima facie case of discrimination in Title VII cases that are

supported by circumstantial evidence. Wilson v. B/E Aerospace, Inc., 376 F.3d

1079, 1087 (11th Cir. 2004). In the failure-to-promote context, the prima facie

case consists of showing these elements: (1) that the plaintiff belongs to a protected

class; (2) that she applied for and was qualified for a promotion; (3) that she was

6
Brown also brought claims under 42 U.S.C. §§ 1981 & 1983. The analysis under those
claims mirrors that under Title VII. Brown v. Am. Honda Motor Co., 939 F.2d 946, 949 (11th
Cir. 1991) (“[T]he test for intentional discrimination in suits under § 1981 is the same as the
formulation used in Title VII discriminatory treatment causes.” (citing Patterson v. McLean
Credit Union, 491 U.S. 164, 185-87 (1989)); Crawford v. Carroll, 529 F.3d 961, 970 (11th Cir.
2008) (“[T]he analysis of disparate treatment claims under § 1983 is identical to the analysis
under Title VII where the facts on which the claims rely are the same.”). While the Department
complains that the district court should have dismissed it from the § 1981 and § 1983 claims on
the ground of sovereign immunity, and that backpay was unavailable “against” Rowe and
McInnes in their official capacities, the Department does not dispute its amenability to suit under
Title VII, nor argue that any unauthorized relief actually was awarded “against” Rowe and
McInnes. Accordingly, we decline to address these arguments of the Department.
17
rejected despite her qualifications; and (4) that other equally or less-qualified

employees outside her class were promoted. Id. at 1089. The comparators for the

fourth prong must be “similarly situated in all relevant respects.” Holifield v.

Reno, 115 F.3d 1555, 1562 (11th Cir. 1997).

If a plaintiff makes the requisite showing, the burden of production shifts to

the employer to articulate a legitimate, nondiscriminatory reason for its actions.

See Rojas v. Florida, 285 F.3d 1339, 1342 (11th Cir. 2002) (citing McDonnell

Douglas Corp. v. Green, 411 U.S. 792, 802 (1973)). The employer “need not

persuade the court that it was actually motivated by the proffered reasons.” Tex.

Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 254 (1981). Rather, if the

employer “articulat[es] one or more reasons, then the presumption of

discrimination is rebutted, and the burden of production shifts to the plaintiff to

offer evidence that the alleged reason of the employer is a pretext for illegal

discrimination.” Wilson, 376 F.3d at 1087.

The defendant Department of Transportation says that the evidence was

insufficient as to each of the promotions that Brown was denied, and that even if it

was sufficient as to some, the backpay award still could not be supported because it

was an aggregate figure demonstrably reflecting all nine of the promotions. We

agree that although the verdict was a general one -- it asked only whether the

Department had “denied promotion(s) to . . . Brown because of her race” -- the
18
sufficiency of the evidence as to each individual promotion affects the viability of

the aggregate amount of Brown’s backpay award. We therefore examine each

promotion separately, and, after thorough review of this record, conclude that only

three of the nine alleged violations were supported by substantial evidence. We

begin with them.

1. Mahaffey

Brown established a prima facie case of discrimination concerning the

promotion of Mike Mahaffey, a white male, to the position of Assistant Division

Engineer for the Third Division on March 20, 2004. The plaintiff passed the Civil

Engineer Administrator test, was placed on the relevant register and on the

Certificate of Eligibles as a qualified candidate, but was not promoted once

certified for the position. As a non-discriminatory reason for hiring Mahaffey and

not Brown, the Department claimed that Mahaffey was more qualified. The jury,

however, was entitled to reject the Department’s proffered reason.

In the first place, the jury could have found on this record that the

Department’s proffered reason was not credible. Brown had extensive experience

as a Civil Engineer, having served in that position from 1989 to 1998, and as a

Civil Engineer Manager from 1998 through the time the CEA vacancy was filled

by the Third Division. While the Department successfully demonstrated at trial

that Brown did not have Mahaffey’s precise qualifications -- “9 years in
19
Construction, 9 years in Maintenance, 5 years in Materials and Tests and 1 year in

Pre-Construction” -- it did not even attempt to explain why those particular

qualifications were superior to Brown’s.7 Thus, although the Department at this

stage was not required to “persuade the [fact finder] that it was actually motivated

by the proffered reasons,” only to show “a genuine issue of fact as to whether it

discriminated against the plaintiff,” Texas Dep’t of Cmty. Affairs v. Burdine, 450

U.S. 248, 254-55 (1981), the jury could have found that the Department’s ill-

explained reasons failed to show any such “issue.”

Second, there was ample evidence of racial discrimination specific to the

Mahaffey promotion, suggesting that the Department’s proffered reasons were

pretextual. In late 2003, not long before she interviewed for the position given to

Mahaffey, Brown also interviewed for a County Transportation Engineer position

in the Ninth Division. She testified that immediately after the interview, she was

approached by a manager by the name of Camp. Camp asked if he was speaking

with Geneva Brown; after being told that he was, he asked for a word with her.

Brown testified that Camp took her into his office and, for her own good,

explained why she likely would not receive any promotions. Notably, the Division

Engineer for the Third Division, James Horsley, had instructed the Eighth Division

7
In addition to Brown’s extensive experience in civil engineering, her test score was one
one-hundredth of a point below that of Mahaffey, and she had consistently received excellent
performance reviews.
20
engineer “to get the minorities . . . off of that register so that the Third Division, the

Ninth Division and all the other divisions . . . could fill their positions with who[m]

they wanted.” And, the Ninth Division did not want her “because of [her]

participation in the lawsuit, the Reynolds case.”8 Horsley, who apparently had held

the Third Division Engineer position open for a year or more while Mahaffey

gained experience and training on an out-of-classification basis, was on the three-

person interview team that selected Mahaffey over Brown, giving the jury

substantial reason to reject the Department’s proffered explanation.

2. Glass

Stacey Glass, a white male, and not the plaintiff Brown, was promoted to the

position of Assistant Bureau Chief of the Maintenance Bureau on March 20, 2004.

The Department challenges Brown’s claim of discrimination as to this promotion

on the ground that her absence from the relevant Certificate of Eligibles prevents

her from establishing a prima facie case and provides a non-discriminatory reason

8
In its reply brief, the Department argues that the district court committed reversible error
when it overruled the Department’s hearsay objection to this testimony. Reply Br., at 23 n.11. Yet,
while the Department preserved this argument by objecting at trial, it failed to include it in its
opening brief on appeal, thereby abandoning it. See Davis v. Coca-Cola Bottling Co. Consol., 516
F.3d 955, 972-73 (11th Cir. 2008) (“It is well settled in this circuit that an argument not included
in the appellant’s opening brief is deemed abandoned. And presenting the argument in the
appellant’s reply does not somehow resurrect it.” (internal citations omitted)). In any event, the
district court overruled the objection because the relevant statements apparently were made by the
Department’s agents concerning matters within the scope of their employment, during the existence
of an employment relationship. See Fed. R. Evid. 801(d)(2)(D). And, we would review such
determinations for a clear abuse of discretion, United States v. Veltmann, 6 F.3d 1483, 1491 (11th
Cir. 1993); the Department has failed to show any.
21
for hiring Glass. Brown argued at trial, however, that the Department manipulated

the registers to avoid promoting her. We think that the evidence before the jury

adequately supported this claim.

While an employee must meet the employer’s objective promotion criteria,

Vessels v. Atlanta Indep. Sch. Sys., 408 F.3d 763, 769 (11th Cir. 2005), such as

scoring high enough to appear on a Certificate of Eligibles, Brown demonstrated

that her test score was high enough to have placed her on the Certificate for the

Assistant Bureau Chief position. The Department requested the Certificate on

January 8, 2004, and received it on January 15. Yet, while the Certificate did

contain ten names drawn from the correct register, neither Brown’s name nor that

of any other black candidate appeared on it. The overwhelming inference, Brown

suggested, was that the Department had manipulated the registers.

The Department countered that Brown’s name did not appear on the January

15 Certificate because she had limited her availability to Tuscaloosa and Jefferson

Counties. The evidence, however, showed that the register reflected Brown’s near-

statewide availability through mid-November 2003, and that Brown had taken

many steps during this period to ensure that her availability remained listed as

statewide, with the exception only of Clarke County. Specifically, after her

discussion with Mr. Camp in November 2003, Brown wrote to the State Personnel

Department on November 6, 2003, asking it to “ensure that [her] name remain[ed]
22
on the Civil Engineering Administrator Register and [to] provide [her] with written

confirmation of this.” She received confirmation on November 19, 2003, that her

“name w[ould] remain active on this list of eligibles to be considered for future

vacancies.” Still concerned, however, Brown wrote again on November 30 and

still again on December 11, noting specifically in the second communication that

she was “unavailable for appointment in Clarke County only at this time but [was]

available in all other Divisions now.” Brown copied management-level

Department officials, such as the Eighth Division Engineer, on her December 11

request that she be listed as available everywhere but in Clarke County. On

January 30, 2004 -- after the Department had received the Certificate, but well

before it made any hiring decisions -- Brown sent yet another communication,

albeit to the Certification Section of the State Personnel Department, asking that

her “name remain on the register for all counties except Clarke.”

The Department contends that this exchange is immaterial because it lacks

the ability to influence register listings maintained by the Personnel Department

and may only hire from the Certificate that the Personnel Department provides.

These contentions do not carry the day for two reasons. First, despite the

Department’s disclaimer of any influence over the registers, other testimony

revealed that the Department, not SPD, furnished the information used to justify

removal of an employee from the registers. It was therefore reasonable for the jury
23
to infer that the Department was responsible for the unexplained disappearance of

Brown’s name from the list, less than two months before the Department obtained

a Certificate that contained no black candidates. Indeed, as the jury heard, the

Department was prohibited by the Frazer injunction from intentionally requesting

Certificates at times when no black candidates appeared on them, as it was found to

have done. Second, Brown had notified the Department of her improper removal

from the CEA register and requested an investigation well before the Department

filled the subject vacancy. Yet despite notice of Brown’s situation, the Department

filled the position from the original Certificate. From this evidence, the jury was

free to infer -- as it undoubtedly did -- that the Department manipulated the hiring

system, either by affirmatively seeking Brown’s removal from the CEA register, or

by waiting to request a Certificate until, for whatever reason, no black candidates

appeared on it.

3. Davis

The plaintiff Brown also claimed that she was improperly denied a

promotion to the position of Division Engineer for the Third Division, which was

filled on an out-of-classification basis by a white engineer, Brian Davis, in August

2005, and then permanently by Davis on September 17, 2005. As with the

promotion of Glass, the Department claims that Brown’s absence from the relevant

Certificate of Eligibles prevents her from establishing a prima facie case and,
24
alternatively, provides the Department with a legitimate, non-discriminatory reason

for hiring Davis. But the Davis promotion differs from the Glass promotion in one

important respect. Here, Brown did not and could not claim that she should have

appeared on the Certificate of Eligibles, since it was drawn from a register on

which Brown’s name did not appear at all. We, therefore, must first decide

whether Brown could have established that she was “qualified” for the subject

position despite her absence from both the Certificate and the register from which

it was drawn.

While an employee must satisfy the employer’s objective promotion criteria,

that requirement extends only to criteria that are “valid.” See, e.g., Miller v. Ill.

Dep’t of Corr., 107 F.3d 483, 485 (7th Cir. 1997) (noting, in ADA context, that

criteria defining “qualification” must be valid). The Department traditionally used

the CESA register to fill Division Engineer positions, but with the Davis

promotion, it used a new register known as the Professional Civil Engineer III

(“PCE III”). Brown essentially claims that the PCE III register was not a “valid”

qualification, and we agree that the jury at least could have reasonably so found.

At trial, but notably not before, the Department purported to justify use of

the PCE III register on the basis of a state licensing law that required certain

applicants to have an engineer’s license. No witness testified that the requirement

of an engineer’s license -- apparently the sole justification for the PCE III register -
25
- had previously applied to long-standing Department employees, and the only

testimony on the subject was that the law “didn’t require” an engineer’s license

prior to 2005. Although Chief Engineer Donald Vaughn stated that this was

because “the [Reynolds] Court asked [the Department] to delay the implementation

of the requirement to have a license until, I believe, it was June of 2005,” he

offered no explanation for the existence of the purported requirement, and the jury,

faced with considerable evidence of discrimination, was entitled to disbelieve him.

The Department counters that even disregarding the PCE III register and

using Brown’s preferred measure of qualification -- the CESA register -- Brown

still failed to establish a prima facie case. Specifically, although Brown scored

twenty-one ranks above Davis on the CESA register, there were over sixty

applicants above Brown on that list, making it extremely unlikely that she would

have appeared on a Certificate drawn from that register. The jury was free,

however, to look past any plausibly invalid promotional criteria, such as the PCE

III register, and to ask whether Brown was as qualified as Davis, whom the

Department apparently did consider “qualified” insofar as it hired him. In

evaluating whether Brown was as qualified as Davis, the best indicator was the

register for the Civil Engineer Senior Administrator, from which the Division

Engineer position had previously been filled. Since Brown appeared well above

Davis on that register, the jury properly could have found her qualified.
26
 The Department nonetheless insists that there is no taint of discrimination

here, and that it did not hire Brown because she lacked an engineer’s license.

Donald Vaughn testified that, whatever the official status of the license

requirement, the Department nonetheless ensured that “[a]ll of [its] division

engineers had a license.” Once again, we think the jury was free to reject this

explanation. As an initial matter, the jury could have found that the use of this

unspoken “objective criterion” was unacceptable and itself discriminatory.

Objective “[e]mployment tests can be an important part of a neutral selection

system that safeguards against the very racial animosities Title VII was intended to

prevent.” Ricci v. DeStefano, 129 S.Ct. 2658, 2676 (2009). In other words, such

tests may help fulfill “[t]he purpose of Title VII[,] [which] ‘is to promote hiring on

the basis of job qualifications, rather than on the basis of race or color.’” Id. at

2675 (quoting Griggs v. Duke Power Co., 401 U.S. 424, 434 (1971)).

But tests also “create legitimate expectations on the part of those who took

[them]. As is the case with any promotion exam, some [such individuals will have]

invested substantial time, money, and personal commitment in preparing for the

tests.” Id. at 2676. Thus, while an employer may use testing “to ensure that all

groups have a fair opportunity to apply for promotions and to participate in the

process by which promotions will be made,” the employer may not, “once that

process has been established” and the selection criteria made known, “invalidate
27
the test results,” id. at 2677, by uniformly applying an unofficial and unstated

selection criterion. The CESA examination was established after rigorous analysis

as the qualification for Division Engineers, and the agency announcement for that

position was silent about any licensing requirement. Under the circumstances, the

jury could have rejected the Department’s attempt to justify hiring Davis rather

than Brown on the basis of a uniformly applied but unofficial licensing

requirement.

In any event, given the surrounding evidence of discrimination in the Third

Division and the Department’s questionable use of a new register to impose a new-

found licensing requirement in 2005 that supposedly had been enacted in 1997, the

jury was by no means required to credit Vaughn’s testimony, even though it was

unrebutted on the particular point. The immediate context of the promotion, which

suggested a substantial measure of pretext, supported the jury’s verdict as to this

promotion as well.

4. Rowe

The appointment of L. Dee Rowe as Division Engineer for the Fifth Division

brings us to the first of six promotions for which we cannot discern sufficient

evidence of discrimination to support the jury’s verdict. The Department does not

dispute that Brown established a prima facie case of discrimination with respect to

Rowe’s promotion on March 25, 2000; Brown clearly did. The sole question is
28
whether the Department provided a legitimate, non-discriminatory reason for

hiring Rowe. The evidence showed that Rowe was appointed through a “backlog

process” pursuant to Reynolds. As Brown’s co-plaintiff Cook-Deyampert

acknowledged, backlog appointments required that “everybody, plaintiffs,

intervenors, and the State[,] had to all agree” to the appointment. In fact, the very

attorneys representing Brown in this case agreed to Rowe’s appointment. Plainly,

the use of the backlog process was a non-discriminatory explanation for the

promotion of Rowe. Brown failed to carry her burden of demonstrating pretext;

she presented no further evidence specific to this promotion.

5. Estes

Randall Estes was appointed as Division Engineer for the Sixth Division on

May 31, 2003. The Department argues that Brown failed to establish a prima facie

case with respect to Estes because he was not “promoted” but merely given a

lateral transfer, and because Brown was neither objectively qualified nor “as or

more qualified” than Estes. As a preliminary matter, it is doubtful whether Brown,

who did not have CESA status at the time, could have been objectively qualified

for this CESA-level position.9 More importantly, however, there was undisputed

evidence that Estes was not promoted.

9
At the time in question, lateral transfers did not require a Certificate of Eligibles. When
Certificates were used to fill Division Engineer positions, however, they were generated from the
CESA register.
29
 In a failure-to-promote case, the plaintiff must show “that other employees

of similar qualifications who were not members of the protected group were indeed

promoted at the time the plaintiff’s request for promotion was denied.” Chappell-

Johnson v. Powell, 440 F.3d 484, 488 (D.C. Cir. 2006) (emphasis added) (citation

omitted). But Estes was moved from one Division Engineer position to another,

retained the same job classification, and received no pay increase. There was no

promotion. While Brown’s attorneys suggested that Estes’ transfer nonetheless

was invalid in that it amounted to a mere reshuffling of white employees who had

benefitted from past discrimination, there was no evidence that Brown even was

seeking the particular position that Estes received, or that the transfer of Estes from

one division to another reduced Brown’s chances of receiving a promotion. The

evidence therefore did not support a claim of discrimination with respect to the

promotion of Estes.

6. Reynolds

Willis G. Reynolds was promoted to the position of Division Engineer for

the Fifth Division on December 13, 2003. The Department argues that Brown

failed to establish a prima facie case or, alternatively, to rebut the Department’s

evidence of a legitimate, non-discriminatory motive with respect to the promotion

of Reynolds. We agree that Brown failed to establish a prima facie case. She did

not appear on the Certificate of Eligibles used to fill the position, as explained by
30
the fact that her score on the Civil Engineer Senior Administrator examination was

41.65, while the lowest score on the eleven-applicant Certificate from which

Reynolds was selected was 41.80. Brown was required to satisfy the Department’s

objective criteria, Vessels, 408 F.3d at 769, and there was no evidence that the use

of this particular Certificate was invalid or otherwise improper. Brown thus failed

to show that she was qualified for the promotion given to Reynolds.

In any event, the Department proffered legitimate, non-discriminatory

reasons for hiring Reynolds: he appeared at the top of the Certificate, with a score

of 51.19; and, the Assistant Transportation Director Ronald Green, who is African-

American, stated in writing that Reynolds was being selected over other

candidates, including “someone with veteran points,” because he was “better suited

for the[] position[].” Brown failed to show any pretext. She suggested that the

Reynolds promotion was tainted by the improper use of “acting” placements, but

the record did not support this suggestion. While the position filled by Reynolds

previously had been occupied by an employee acting out of classification, there

was no evidence that Reynolds had received any such favorable treatment.

7. Rhoden

Robin Rhoden was promoted from the same Certificate used to promote

Reynolds, and the facts surrounding the two promotions are virtually identical,

except insofar as Rhoden was listed third, not first, on the Certificate. Brown was
31
not and could not have been on the Certificate, and therefore failed to establish a

prima facie case. And, once again, Brown’s absence from the Certificate also

provided a legitimate, non-discriminatory reason for the promotion of Rhoden.

Further, Rhoden had a number of specific qualifications listed on a form

memorializing her promotion, including experience in construction and as a

District Engineer, a working knowledge of materials issues, and a degree in civil

engineering technology. Brown, who had largely completed the requirements for a

degree in civil engineering, had never obtained one. In addition, Rhoden’s

appointment was approved expressly by Brown’s African-American supervisor

Ron Green. Green, as a member of the interview team, found Rhoden “better

suited” than the other applicants. Finally, as with Reynolds, there is no evidence

that the Department provided Rhoden with an unfair competitive advantage

through out-of-classification assignments to the position she ultimately filled.

8. Tolbert

Charles Tolbert was promoted to the position of County Transportation

Engineer for the Ninth Division on December 27, 2003. This promotion poses a

peculiar question, namely, whether Brown sufficiently informed the jury of her

claim relative to this promotion, such that a reviewing court could assume that the

jury even considered any supportive evidence. The sole testimony offered to the

jury on the subject of Tolbert’s promotion was Brown’s concessions on cross-
32
examination that she: “didn’t testify [on the subject of] that [promotion]” and “did

not provide [evidence regarding] that [promotion] to the jury” at trial; did not know

whether she was on the Certificate of Eligibles for the position; did not interview

for the position; and did not know whether Tolbert or someone else got the

promotion. Brown herself drew no connection between the discussion with Mr.

Camp and the Tolbert promotion. In all, the jury heard nothing on the subject of

the Tolbert promotion from any witness. We cannot fairly ascribe the jury’s

findings of discrimination to the Tolbert promotion, when the jury had no reason to

know that the promotion was even at issue.

9. Baldwin

The facts before the jury on the subject of Ronald Baldwin’s promotion to

the CESA position of Bureau Chief for the Office Engineer Bureau on March 19,

2005, were few, and they do not support a finding of discrimination. Brown was

not on the Certificate used to fill the position given to Baldwin, offered no specific

evidence with respect to her efforts to obtain the job or her qualifications relative to

Baldwin’s, and provided no reason why the Department’s reliance on the

Certificate was pretextual. Brown did not, for example, claim that the Department

used out-of-classification rotations to favor Baldwin over herself, or that she had

been removed improperly from the register from which the Certificate was

generated. In short, there were no facts supporting a finding in Brown’s favor with
33
respect to Baldwin’s promotion.

B.

Brown also claimed that she was denied each of the nine promotions as a

form of retaliation for her outspoken opposition to discrimination, and specifically

for her testimony on at least four occasions between 1992 and 2004 in the

Reynolds litigation. We need not address whether the evidence supported a claim

of retaliation with respect to the promotions of Mahaffey, Glass, or Estes, having

already concluded that there was sufficient evidence to support a jury finding of

discrimination in the failure to promote the plaintiff. And the remedy for the

retaliatory claims would be exactly the same. We do, however, examine the

sufficiency of the evidence concerning the plaintiff’s claims of retaliation as to the

remaining six promotions -- those of Rowe, Estes, Reynolds, Rhoden, Tolbert, and

Baldwin. These retaliatory claims fail for insufficient evidence.

The McDonnell Douglas burden-shifting analysis applies in cases of

retaliation relying on circumstantial evidence, such as this one. Bryant v. Jones,

575 F.3d 1281, 1307 (11th Cir. 2009). As we recently explained, the prima facie

case for retaliation requires the employee to show that:

(1) he engaged in a statutorily protected activity; (2) he suffered an
adverse employment action; and (3) he established a causal link
between the protected activity and the adverse action. These three
elements create a presumption that the adverse action was the product
of an intent to retaliate. Once a plaintiff establishes a prima facie case
34
 of retaliation, the burden of production shifts to the defendant to rebut
the presumption by articulating a legitimate, non-discriminatory
reason for the adverse employment action. If the defendant carries this
burden of production, the presumption raised by the prima facie case
is rebutted and drops from the case. After the defendant makes this
showing, the plaintiff has a full and fair opportunity to demonstrate
that the defendant’s proffered reason was merely a pretext to mask
discriminatory actions.

Id. at 1307-08 (internal citations and quotation marks omitted).

There is no dispute here that Brown engaged in protected activity -- her

testimony and general involvement in the Reynolds discrimination class action

against the Department, see 42 U.S.C. § 2000e-3(a); Crawford v. Carroll, 529 F.3d

961, 970 (11th Cir. 2008) -- and that she suffered a series of adverse employment

actions. The disputed question is whether the evidence sufficiently established,

with respect to any of the promotions that Brown allegedly was denied, a “causal

connection” between the two foregoing facts. To show causation, a plaintiff in a

retaliation case need prove only that retaliatory animus was one factor in the

adverse employment decision. See, e.g., Terry v. Ashcroft, 336 F.3d 128, 140-41

(2d Cir. 2003).

The Department noted that the only specific times Brown claims to have

testified in Reynolds were in 1992, and again in December 2004, and that the

closest promotion in time to those dates (that of Baldwin on March 19, 2005) was

three months removed. It also claims that no decisionmakers at the Department

35
were shown to have had knowledge of Brown’s participation or testimony in

Reynolds, as required by our case law. See Gupta v. Fla. Bd. of Regents, 212 F.3d

571, 590 (11th Cir. 2000) (requiring plaintiff to show that decisionmaker knew of

her participation in a protected activity).

The Department takes too narrow a view of Brown’s involvement in the

Reynolds lawsuit, and of the evidence of retaliatory animus presented at trial. The

specific dates or periods when Brown recalls testifying are not the only dates

relevant here. In addition to testifying in 1992 and again in 2004, Brown also

testified on at least two occasions between 1992 and 2004, although she did not

recall when, specifically. Brown’s undisputed testimony also was that she was an

“active” member of the Reynolds class, and that when she was not testifying, she

“was . . . on the witness list to testify, [and was a] very vocal . . . participant.” As

Brown argues on appeal, the potential significance of the protected activity must be

taken into account in assessing how strictly the rule of temporal proximity should

be applied. A single statement that injures or offends the employer is different

from vocal participation in a “contentious, on-going class action that makes major

inroads in upsetting systemic racial discrimination,” Answering Br., at 38, which is

an apt characterization of the Reynolds litigation.

That said, we agree with the Department that this is not a case where

temporal proximity alone is sufficient to establish an inference of retaliation. To
36
do so, the temporal relationship between the protected activity and the adverse

employment action must be “very close.” Thomas v. Cooper Lighting, Inc., 506

F.3d 1361, 1364 (11th Cir. 2008) (quoting Clark County Sch. Dist. v. Breeden, 532

U.S. 268, 273 (2001)). Even a three-month interval between the protected

expression and the employment action -- the briefest interval we face here -- is too

long. Id. (citing Richmond v. ONEOK, 120 F.3d 205, 209 (10th Cir. 1997)).

“Thus, in the absence of other evidence tending to show causation, if there is a

substantial delay between the protected expression and the adverse action, the

complaint of retaliation fails as a matter of law.” Id.

Here, Brown offered no additional evidence of retaliation except for her

testimony concerning the interaction with Mr. Camp. This evidence, at least with

respect to retaliation, was wholly generalized and plainly insufficient to establish

liability without something more. But because Brown did not offer anything more

as to the promotions or transfers of Rowe, Estes, Reynolds, Rhoden, Tolbert, and

Baldwin -- indeed, she offered nothing at all on the subject of the Tolbert

promotion -- she failed to establish a claim of retaliation concerning those

promotions.

On balance, there are only three promotions -- those of Mahaffey, Glass, and

Davis -- that yield an inference of either discrimination or retaliation. As a result,

backpay was permissible only as for those three promotions.
37
 C.

The jury awarded backpay to Brown in the amount of $65,697.65, the

precise amount proposed in Brown’s backpay table. The table reflected a backpay

period running from May 30, 2001, to September 13, 2006, and spanning all nine

promotions, and was generally calibrated to account for the pay increases that

Brown would have received from the first date she was denied a promotion to a

particular salary level. For a number of reasons, the Department argues that the

backpay award should have been vacated or remitted.

A district court may order a remittitur to reduce an excessive verdict under

several circumstances, including “where the court can identify an error that caused

the jury to include in the verdict a quantifiable amount that should be stricken.”

Kirsch v. Fleet Street, Ltd., 148 F.3d 149, 165 (2d Cir. 1998) (citation omitted); see

also United States ex rel. A+ Homecare, Inc. v. Medshares Mgmt. Group, Inc., 400

F.3d 428, 458 (6th Cir. 2005) (citation omitted).

The Department first argues that Brown failed at trial to disclose the basis

for her backpay table -- in particular, the specific comparators she used in her table

to establish the level of pay she should have received. We are unpersuaded.

Brown disclosed the bases for the table to defense counsel prior to trial, and

counsel fully cross-examined the preparer of the table without suggesting that the

table was inaccurate in any way. Under these circumstances, the jury was free to
38
accept the table at face value.

The Department next argues that Brown’s backpay should have been cut off

by her rejection of several offers of promotion in late 2003 and early 2004. This is

a mitigation argument on which the Department bears the burden of proof. Nord v.

U.S. Steel Corp., 758 F.2d 1462, 1470-71 (11th Cir. 1985); Marks v. Prattco, Inc.,

633 F.2d 1122, 1125 (5th Cir. 1981).10 The Department is correct that “absent

special circumstances, the rejection of an employer’s unconditional job offer ends

the accrual of potential backpay liability.” Ford Motor Co. v. EEOC, 458 U.S.

219, 241 (1982). But “special circumstances” include situations in which the

employer’s offer is not made in “good faith,” or where the employee’s rejection of

the offer is “reasonable.” Stanfield v. Answering Serv., Inc., 867 F.2d 1290, 1296

(11th Cir. 1989).

The Department cross-examined Brown on the only two identified instances

in which she declined a promotion. Brown first testified in detail about the

campaign of harassment directed at her by her would-be supervisor as she

considered whether to accept one such offer -- a position in the Materials Bureau

ultimately given to Scott George. She then testified that she declined a position in

10
In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), we
adopted as binding precedent the decisions of the former Fifth Circuit rendered before the close
of business on September 30, 1981.

39
the Eighth Division because of a racially hostile work environment. Specifically,

Brown testified that her former co-worker Freddie Golthy, an African-American

who participated with Brown in the Reynolds litigation, was murdered on the

Eighth Division premises by a white employee, that the homicide was racially

motivated, and that the area was known for its prevalent racism. The jury was

entitled to credit Brown’s account of her decisions to reject the offers of promotion

over the Department’s account.

The Department’s third claim is that Brown’s backpay award must be

reduced because she failed to prove that any discriminatory or retaliatory denial of

a promotion occurred before May 30, 2001, the beginning of the backpay period.

We agree with this argument. Brown failed to present sufficient evidence to

support her claims with respect to the promotions (or transfers) of Rowe, Estes,

Reynolds, Rhoden, Tolbert, and Baldwin. Because she made a series of “separate

claim[s] of discrimination on the part of [the Department] for which [she] cannot

recover absent proof that the promotions were denied on the basis of race,”

Robinson v. City of Fairfield, 750 F.2d 1507, 1512 (11th Cir. 1985), the backpay

award must be recalculated. Accordingly, we vacate the award and remand with

instructions that the district court determine an amount of backpay that will, to the

extent reasonably possible and consistent with this opinion, make Brown “whole

for injuries [she] suffered on account of [the Department’s] unlawful employment
40
discrimination.” Albemarle Paper Co. v. Moody, 422 U.S. 405, 418 (1975).

Although the Seventh Amendment ordinarily requires that an order of

remittitur be accompanied by an offer for a new trial, there is no such need under

the peculiar circumstances of this case. Backpay in this Circuit is considered

equitable relief, whether granted under Title VII, which provides solely for

equitable remedies, or §§ 1981 and 1983, which provide for legal remedies as well.

Whiting v. Jackson State Univ., 616 F.2d 116, 122 n.3 (5th Cir. 1980); see also

Johnson v. Chapel Hill Indep. Sch. Dist., 853 F.2d 375, 383 (5th Cir. 1988). The

determination of backpay under any of these provisions therefore “entails no rights

under the seventh amendment.” Lincoln v. Bd. of Regents of Univ. Sys. of Ga.,

697 F.2d 928, 934 (11th Cir. 1983).

Of course, when legal and equitable issues are tried together and overlap

factually, the Seventh Amendment requires that “all findings necessarily made by

the jury in awarding [a] verdict to [a party on legal claims] are binding on . . . the

trial court” when it sits in equity. Williams v. City of Valdosta, 689 F.2d 964, 976

(11th Cir. 1982).11 Here, there was an evident factual overlap between Brown’s

legal claim for mental anguish damages and her equitable claim for backpay.

Critically, however, the jury did not “necessarily” make any findings with respect

11
When legal and equitable issues are tried together and do not overlap, the jury’s
verdict on any equitable issues is advisory. Sherman v. Burke Contracting, Inc., 891 F.2d 1527,
1529 n.4 (11th Cir. 1990).
41
to the availability of any legal relief. The jury found only that the Department

denied promotions to Brown on the basis of her race or for retaliatory reasons, and

it awarded her mental anguish damages on the basis of one or more unspecified

instances of discrimination or retaliation. Thus, there were no findings as to any

legal claim that would merit deference in scrutinizing the facts underlying the

purely equitable backpay award.

III.

Based on the jury’s findings, the district court entered a permanent

injunction, the relevant portions of which required the Department to (1)

“immediately transfer Plaintiff Geneva Brown in a comparable position nearest her

residence in the Third or Fifth Division”; (2) “promote her to fill the next vacancy

in the position of Division Engineer in the Third Division”; and (3) compensate her

“at a rate not less than that of the incumbent Brian Davis.” Final Judgment and

Permanent Injunction, at 3.

The Department challenges the injunction on three grounds. First, it claims

that the term “comparable,” as used to describe the interim position that Brown

shall receive in the Third or Fifth Divisions, is not sufficiently definite. Second, it

says that the district court lacked the authority to order specifically that Brown be

instated in the Third Division, near her residence, rather than in the first available

position to which she claims to have been denied a promotion, wherever that
42
vacancy may arise. Finally, the Department contends that it is prohibited by

Alabama law from placing Brown in a Division Engineer position, inasmuch as

Brown does not hold an engineering license purportedly required by state law.

“Although the grant of permanent injunctive relief is generally reviewed for

an abuse of discretion, if the trial court misapplies the law we will review and

correct the error without deference to that court’s determination.” Hughey v. JMS

Development Corp., 78 F.3d 1523, 1528 (11th Cir. 1996) (quotation marks and

citation omitted); see also Guaranty Fin. Servs., Inc. v. Ryan, 928 F.2d 994, 998

(11th Cir. 1991).

Like unclear legislation, a vague injunction “may trap the innocent by not

providing fair warning” of what is prohibited. Grayned v. City of Rockford, 408

U.S. 104, 108 (1972). Not surprisingly, Federal Rule of Civil Procedure 65(d)

requires that injunctive orders “state [their] terms specifically” and “describe in

reasonable detail . . . the act or acts restrained.” In other words, to comply with the

requirements of Rule 65(d), an injunction must “be specific and definite enough to

apprise those within its scope of the conduct that is being proscribed.” In re

Baldwin-United Corp., 770 F.2d 328, 339 (2d Cir. 1985).

While the district court’s injunction unambiguously requires that Brown be

placed in the “next vacancy in the position of Division Engineer in the Third

Division,” it does not define with adequate specificity the “comparable” position
43
that Brown is to hold pending a vacancy in the Third Division Engineer position.

The term “comparable” might designate -- as Brown asserts -- positions

comparable to those that Brown claims to have been improperly denied. Yet, even

ignoring the inherent lack of clarity in that designation (most of the subject

promotions were to CESA-level positions, but several -- including one as to which

we discern sufficient evidence -- were not), the injunction could also reasonably

designate positions “comparable” to Brown’s current position at the Civil Engineer

Administrator level. The latter interpretation is plausible for two reasons.

First, in ordering Brown’s co-plaintiff Roslyn Cook-Deyampert reinstated

and promoted to the next vacancy in the Sixth Division Engineer position, the

district court provided that Cook-Deyampert’s interim position would be either her

“former or a comparable position.” The court clearly tied the interim position to

Cook-Deyampert’s last-held position, not the position to which she would be

promoted. The only meaningful difference in the clause governing Brown’s

instatement level is that Brown was never terminated. Plainly, then, the

“comparable position” language could refer to Brown’s current CEA-level

position. Second, while the district court’s remedy might have appeared

incomplete if Brown and Cook-Deyampert had been left for some indefinite period

in positions comparable to their former jobs -- such incompleteness suggesting that

the injunction could only be read as Brown reads it -- the district court required
44
that both plaintiffs receive pay at the Division Engineer level pending promotion,

meaning that a reading contrary to Brown’s would be consistent with both the

letter and the spirit of the injunction.

Notably, the injunction also fails to specify what the Department must do if

the subject “comparable position” -- however defined -- is not available. Unlike

the command that Brown must be given the next vacancy in the Third Division

Engineer position, the “comparable position” clause does not disclaim a

requirement that the Department “bump” a current occupant, nor state whether the

Department is expected to create a vacancy if one is not currently available.

Although Brown understandably complains that the Department “has made

no effort . . . to identify a job it proposes as ‘comparable’ or to otherwise consult

with plaintiff to determine if there is a genuine controversy about whether it is

‘comparable,’” Answering Br., at 59, the injunction itself still must be clear enough

so that the enjoined party can comply without fear of contempt. Cf. N.Y. State

Nat’l Org. for Women v. Terry, 886 F.2d 1339, 1351-52 (2d Cir. 1989) (“[Rule

65(d)] was intended to prevent an uncertain or vague decree from becoming the

basis for a contempt citation.”). And, while the Department did not preserve this

issue in the district court by seeking clarification, we may nonetheless address the

issue if its “proper resolution is beyond any doubt.” Narey v. Dean, 32 F.3d 1521,

1526-27 (11th Cir. 1994) (listing five exclusive exceptions to ban on appellate
45
review of issues not raised in the district court). We think it “beyond any doubt”

that the “comparable position” clause fails the standard enunciated by Rule 65(d).

We therefore direct the district court to redraft that clause on remand with the

clarity and specificity required by the Federal Rules. See PMC, Inc. v. Sherwin-

Williams Co., 151 F.3d 610, 619-20 (7th Cir. 1998) (remanding to district court for

redrafting of insufficiently definite injunction).

The Department next argues that nothing in Title VII entitles Brown to a

position near her residence. It claims that Brown should have been ordered

promoted to whatever vacancy became available among the positions to which she

claims to have been denied a promotion. Title VII provides broadly that

[i]f the court finds that the respondent has intentionally engaged in or
is intentionally engaging in an unlawful employment practice charged
in the complaint, the court may . . . order such affirmative action as
may be appropriate, which may include, . . . reinstatement or hiring of
employees, with or without back pay . . . , or any other equitable relief
as the court deems appropriate.

42 U.S.C.A. § 2000e-5(g)(1) (emphasis added).

Subsequent to the events underlying her legal claims, Brown agreed to work

in Montgomery after receiving one of the Civil Engineer Administrator positions

she had so long sought to obtain. At the time of trial, she was driving over one

hundred miles each way from her residence in Tuscaloosa. At trial, Brown

expressed a desire to be instated at a level equivalent to that of the improperly

46
denied promotions, and “to be brought back home.” In light of the promotions that

the jury properly could have found were denied Brown on account of her race, the

district court was authorized to remedy the violations by ordering such “equitable

relief as [it] deem[ed] appropriate.” 42 U.S.C.A. § 2000e-5(g)(1). On the facts

presented here, the district court acted well within its considerable discretion in

specifying that Brown be promoted to a position in the Third Division, near her

home.

Finally, the Department says that an Alabama state licensing law prevents it

from instating Brown at the level of Division Engineer. Alabama law does contain

a license requirement for engineers,12 but also contains the following exemption

from that requirement:

This chapter shall not be construed to prevent or to affect any of the
following . . . (5) The practice of engineering or land surveying by
any person who is employed by the Alabama Department of
Transportation prior to January 1, 1997, in any engineering or
engineering assistant classification series under the State of Alabama
Personnel Board, Merit System.

Ala. Code § 34-11-14. The Department, armed with a consistent interpretation by

the Office of the Alabama Attorney General, contends that the statute exempts

those persons employed in one of the relevant classifications prior to January 1,

12
“No person in either public or private capacity shall practice or offer to practice
engineering or land surveying, unless he or she shall first have submitted evidence that he or she
is qualified so to practice and shall be licensed by the board as hereinafter provided or unless he
or she is specifically exempted from licensure under this chapter.” Ala. Code. § 34-11-2(a).
47
1997, from the licensing requirement only to the extent they remain in those same

positions -- i.e., that any advancement beyond those classifications requires a

license. See State of Alabama, Office of the Attorney General, Opinion Regarding

Interpretation of Alabama Code § 34-11-14(5), dated April 12, 2004. The district

court was unpersuaded by the opinion letter and the Department’s argument, and

we see no legal error or abuse of discretion in the district court’s determination.

As an initial matter, the district court made a factual finding that Brown was

employed in a position prior to 1997 that brought her within the terms of the

exemption. Final Judgment and Permanent Injunction, at 3 n.1 (citing Ala. Code §

34-11-14(5)). The Department has not argued, and therefore has not shown, that

the district court’s finding of fact was clearly erroneous. Carmichael v. Kellogg,

Brown & Root Servs., Inc., 572 F.3d 1271, 1279 (11th Cir. 2009) (“We review the

district court’s . . . factual findings for clear error.”); Univ. of Ga. Athletic Ass’n v.

Laite, 756 F.2d 1535, 1543 (11th Cir.1985) (“[T]he ‘clearly erroneous’ standard . .

. presents a formidable challenge to appellants who . . . seek to overturn the factual

findings of a district court.”).

As for whether the district court committed legal error in construing the

scope of the exemption, we first note that because the Attorney General had issued

an opinion on the point, the district court was not free to “proceed as if the matter

were open to utterly independent consideration.” Huggins v. Isenbarger, 798 F.2d
48
203, 207 (7th Cir. 1986) (Easterbrook, J., concurring). Such “opinions of the

Attorney General of course are not binding, [but] they are entitled to some

deference, especially where judicial decisions construing a statute are lacking.”

Tel-Oren v. Libyan Arab Republic, 726 F.2d 774, 780 n.6 (D.C. Cir. 1984)

(Edwards, J., concurring) (collecting cases addressing deference to opinions of

state and federal attorneys general). In the absence of any dispositive state-court

jurisprudence on an issue of state law, a federal court should “closely examine the

opinions of the [State] Attorney General.” Kneeland v. Nat’l Collegiate Athletic

Ass’n, 850 F.2d 224, 228 (5th Cir. 1988).

The opinion at issue here was requested sometime in 2004, in the midst of

this litigation, by Transportation Director Joe McInnes, who asked the Attorney

General whether

section 34-11-14(5) of the Code of Alabama exempt[s] an employee
of the Alabama Department of Transportation (“ALDOT”), who was
employed as an engineer or engineer assistant before January 1, 1997,
from having to obtain a license or certificate throughout his or her
employment with ALDOT regardless of his or her position, or
[whether] it only exempt[s] the employee from having to obtain a
license for the position he or she held before January 1, 1997[.]

Opinion, at 1. Citing the judicial canon that “grandfather clauses” are to be

construed narrowly, and noting the Legislature’s desire to “protect the public from

unqualified, incompetent, and dishonest engineers,” id. at 4, the Office of the

Attorney General responded in a formal opinion that the exemption only applies to
49
an exempt employee’s current classification. It found further support for this

reading in a comparison with an earlier provision, enacted in 1961, which

exempted from the licensing requirement “the practice of any person who is

employed by the Alabama State Highway Department in the classified service

under the State of Alabama Personnel Board (Merit System).” 1961 Ala. Acts No.

79 (emphasis added). The Office of the Attorney General noted that the older

provision “did not restrict the application of the exemption by either the

employee’s position or time of employment,” Opinion, at 5, suggesting that the

newer provision was generally more restrictive.

We believe the district court properly declined to defer to the opinion of the

Attorney General in this instance. Like the district court, we are not persuaded by

the defendant’s position concerning the exemption. The statute provides an

exemption for

[t]he practice of engineering or land surveying by any person who is
employed by the Alabama Department of Transportation prior to
January 1, 1997, in any engineering or engineering assistant
classification series under the State of Alabama Personnel Board,
Merit System.

Ala. Code. § 34-11-14. As we read it, the statute could not be clearer in separating

the clause regulating the scope of the exemption from the clause specifying who

may enjoy it. The statute states that its licensing requirement shall not affect “[t]he

practice of engineering by any person” who falls within a particular class of
50
individuals, namely, those individuals who were “employed by the Alabama

Department of Transportation prior to January 1, 1997, in any engineering or

engineering assistant classification series under the State of Alabama Personnel

Board, Merit System.” Notably, the statute does not provide an exemption for “the

practice of engineering . . . in any engineering or engineering assistant

classification series by any person who is employed in such a classification by the

Alabama Department of Transportation prior to January 1, 1997.” The reading

offered by the Attorney General would require the addition of words that the actual

statute does not contain.

The Attorney General nevertheless offers a series of observations on the

construction of grandfather clauses and the role of legislative intent in statutory

interpretation. But under Alabama law, “[w]here a statutory pronouncement is

distinct and unequivocal, there remains no room for judicial construction and the

clearly expressed intent of the legislature must be given effect.” Ex parte

Holladay, 466 So.2d 956, 960 (Ala. 1985). This statute is clear that if an employee

worked in one of the listed classifications prior to the first day of 1997, the statute

does not affect “[t]he practice of engineering” as to that employee. The district

court committed no legal error and did not abuse its discretion in the entry of

injunctive relief.

But, even if the statute were in some manner ambiguous, the district court
51
would not have been bound to adopt the interpretation advanced by the Attorney

General, only to give that interpretation “some deference.” Tel-Oren, 726 F.2d at

780 n.6 (Edwards, J., concurring). That deference ordinarily is considerable where

there are no judicial decisions construing the statute. Id. Here, however, we think

the district court still would have been free to decline to defer to the opinion of the

Attorney General in fashioning injunctive relief.

The Department’s interpretation of the statute squarely implicated the

district court’s ability to vindicate federal non-discrimination policy. The record

reflected a long history of racially motivated workplace discrimination. It also

indicated, more specifically, that the Department’s interpretation of the licensing

requirement represented an abrupt break with its past practice of exempting

candidates in service prior to 1997. Finally, it showed that the interpretive change

caused all but one of the forty-nine black employees previously qualified for

Division Engineer and Bureau Chief positions under the CESA register to become

ineligible for those positions. Under the peculiar facts and circumstances of this

case, we do not believe the district court would have abused its considerable

discretion in declining to adopt the reading advanced by the Department, even if

the statute had contained an ambiguity.

IV.

In short, substantial evidence supported the jury’s findings that the
52
Department discriminated against Geneva Brown in connection with three of the

promotions she was denied, but that the evidence was insufficient to support a

finding of discrimination or retaliation as to the remaining six promotions.

Because the jury’s backpay award was plainly a cumulative figure reflecting each

of the promotions, we are obliged to remand the backpay award for recalculation.

Upon remand, the district court shall make an equitable recalculation of Brown’s

backpay that reflects, to the extent ascertainable, only the three promotions for

which Brown presented sufficient evidence of discrimination or retaliation. On

remand, the district court shall also clarify that portion of the permanent injunction

requiring that Brown be instated to a “comparable position” pending her promotion

to the position of Third Division Engineer. In all other respects, we affirm the

entry of injunctive relief.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

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