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Perry v. Alabama Alcoholic Beverage Control Board

United States District Court, M.D. Alabama, Northern Division

March 30, 2017

KESIA J. PERRY, Plaintiff,
v.
ALABAMA ALCOHOLIC BEVERAGE CONTROL BOARD, Defendant.

          MEMORANDUM OPINION AND ORDER

          W. KEITH WATKINS CHIEF UNITED STATES DISTRICT JUDGE.

         This action is before the court on the mandate of the Eleventh Circuit Court of Appeals. On appeal from summary judgment entered in favor of the employer on all federal discrimination claims brought by former employees, including Kesia J. Perry (“Perry”), the Eleventh Circuit affirmed in part and vacated and remanded in part. One plaintiff (Perry), one defendant (the Alabama Alcoholic Beverage Control Board), and one claim (Title VII retaliation) remain. The Eleventh Circuit's judgment has issued as mandate; however, the ABC Board has filed a motion insisting that the mandate does not constrain this court because Perry did not plead the Title VII retaliation claim in the controlling complaint or argue the theory in the district court. The Alabama Alcoholic Beverage Control Board (“ABC Board”) also moves for summary judgment on the Title VII claim, asserting that this claim “was never a part of this lawsuit.” (Doc. # 185, at 39.) Alternatively, the ABC Board contends that, if this court permits the claim to go forward, then it is entitled to discovery. Perry, who now is proceeding pro se, filed a response in opposition. For the reasons that follow, the motion is due to be denied.

         I. BACKGROUND

         It is helpful to begin by sketching briefly the litigation (and lack thereof) in the district court surrounding the Title VII retaliation claim that the Eleventh Circuit has held survives summary judgment. The claim is that the ABC Board retaliated against Perry for filing this lawsuit by promptly reassigning her a new supervisor, Andy Knight, who subjected her work to heightened scrutiny. A Title VII retaliation claim predicated on Knight's alleged retaliatory supervision of Perry is not in the operative second amended complaint for the obvious reason that his supervision of Perry post-dates the amended pleading's filing and, thus, had not yet occurred. While the operative complaint does set forth a Title VII retaliation claim, that claim does not allege that the filing of this lawsuit is the protected activity for which Perry suffered adverse action. At no time did Perry file a motion in the district court to amend the second amended complaint to add a Title VII retaliation claim based upon Knight's alleged post-lawsuit retaliatory conduct, as this circuit generally requires. See Brown v. Snow, 440 F.3d 1259, 1266 (11th Cir. 2006) (holding that a Title VII retaliation claim was not properly before the court because, although the plaintiff “had not been fired when he filed his complaint, [the plaintiff] never amended his complaint to include a claim of retaliation based on his termination”).

         Notwithstanding the nonexistence of the Title VII retaliation claim in Perry's pleadings, evidence to support it is in the summary judgment record. During the discovery proceedings, Knight was deposed. Topics of questioning at his deposition included his supervision of Perry, his undisputed contemporaneous knowledge of Perry's lawsuit, his superior's implied directive to “get rid of” Perry, and his superior's ensuing praise when Knight fulfilled that directive. (See Doc. # 102-19; Doc. # 121-10.) By affidavit and at her deposition, Perry also reiterated the chronology of Knight's supervision over her. (Doc. # 122-1, at 17-18 (Pl.'s Aff.); Doc. # 121-1 (Pl.'s Dep.).) Perry testified that she believed that the reassignment of Knight as her supervisor and the discipline he doled out (e.g., a counseling form) were retaliatory. (Doc. # 121, at 81, 85.) Moreover, the ABC Board submitted excerpts of Knight's deposition in support of its motion for summary judgment, and those excerpts focused on the particulars of Knight's supervision of Perry.[1] (See Doc. # 102-19, at 1-38.)

         The parties' summary judgment briefs also included factual recitations of Knight's post-suit supervision of Perry. In particular, the ABC Board acknowledged that Perry's lawsuit was a protected activity (Doc. # 104, at 19-20, 51) and noted (and then rebutted) the testimony of Knight that “he believed he was put in place to essentially retaliate against Plaintiff” (Doc. # 104, at 24). In her brief opposing summary judgment, Perry also highlighted the circumstances of her job under Knight's supervision. (Doc. # 120, at 27-31.) But Perry did not categorize the evidence of Knight's close supervision that followed on the heels of this lawsuit as a discrete act of retaliation that supported an independent Title VII retaliation claim.[2]Perry instead framed the evidence around a retaliatory hostile work environment claim (Doc. # 120, at 27-31, 47, 52), a claim that, ironically for the ABC Board, the district court rejected because Perry had not “move[d] to amend to add such claim.” (Doc. # 156, at 52-53.) The district court's opinion on summary judgment also does not analyze a separate Title VII retaliation claim that Knight's post-lawsuit supervision of Perry was an act in retaliation for filing a lawsuit, and understandably so.[3]

         On appeal of the adverse summary judgment ruling, for the first time, Perry's attorney expressly raised a Title VII retaliation claim premised on Knight's post-lawsuit supervision.[4] Perry explained that, in July 2011, after having learned of Perry's lawsuit, Human Resources Manager (Stan Goolsby) reassigned Knight to supervise Perry and instructed him “to keep a close watch on [her] and to use progressive discipline if necessary.” (Doc. # 185-1, at 10-11.) Goolsby conveyed to Knight his belief that Perry “would either hang herself or she would become so upset that she would quit.” (Doc. # 185-1, at 10-11.) Formulating her claim on appeal, Perry argued that Goolsby's directives to Knight, which occurred one month after she filed her lawsuit, and the ensuing disciplinary actions Knight imposed on her supported a Title VII retaliation claim. (Doc. # 185-1, at 27-28.) The ABC Board countered that Perry's failure in the district court to raise a claim that “her placement under Andy Knight's direction constituted an act of retaliation” amounted to a waiver, but that, alternatively, Knight's supervision of Perry was not an adverse employment action. Perry, No. 13-14897-E (11th Cir. Feb. 12, 2014) (Appellee's Br., at 55-56).

         Opining that “Knight's close supervision of [Perry] was an act of retaliation, ” the Eleventh Circuit held that “a genuine issue of material fact exist[ed] as to whether the ABC [Board] retaliated against Perry after she filed her lawsuit.” (Doc. # 174, at 21, 25.) It reasoned that, “[b]ased on the close temporal proximity between the filing of Perry's complaint and the subsequent disciplinary activity, a reasonable jury could conclude that Perry would not have been closely watched and then disciplined by Knight in the absence of her protected activity.” (Doc. # 174, at 25.) The Eleventh Circuit described the “disciplinary activity” as embracing (1) Knight's counseling of Perry concerning her “punctuality, cooperation with coworkers, and compliance with the ABC Board's rules, ” (2) a written reprimand, and (3) a suspension. (Doc. # 174, at 24-25.) Accordingly, the Eleventh Circuit “reverse[d] and remand[ed] with respect to Perry's retaliation claim.” (Doc. # 174, at 25.) The decision did not mention the ABC Board's waiver argument.

         After the Eleventh Circuit's reversal, the ABC Board petitioned the Eleventh Circuit for rehearing or rehearing en banc. The ABC Board argued that, because Perry did not amend her complaint to include discrete acts of retaliation occurring after she filed her lawsuit, a Title VII claim premised on alleged post-lawsuit retaliation was outside the scope of Perry's litigation. The ABC Board emphasized that “[t]he panel decision predicated the entire surviving retaliation claim on factual events that occurred after Perry filed this lawsuit.” Perry v. Ala. Alcoholic Beverage Control Board, No. 13-14897-E (11th Cir. Oct. 20, 2015) (Pet. for Reh'g). The Eleventh Circuit summarily denied the petition for rehearing and entered the judgment as the mandate. The ABC Board has filed the present motion for relief from the mandate and for summary judgment on the remanded claim or, alternatively, for leave to conduct additional discovery.

         II. DISCUSSION

         Upon receipt of the mandate, the district court “may not alter, amend, or examine the mandate, or give any further relief or review, but must enter an order in strict compliance with the mandate.” Piambino v. Bailey, 757 F.2d 1112, 1119 (11th Cir. 1985); see also Cox Enters., Inc. v. News-Journal Corp., 794 F.3d 1259, 1271 (11th Cir. 2015) (accord). The district court must “implement both the letter and the spirit of the mandate taking into account the appellate court's opinion, and the circumstances it embraces.” Piambino, 757 F.2d at 1119 (internal citations omitted). “Although the trial court is free to address, as a matter of first impression, those issues not disposed of on appeal, it is bound to follow the appellate court's holdings, both expressed and implied.” Id. Hence, the mandate rule “ban[s] courts from revisiting matters decided expressly or by necessary implication in an earlier appeal of the same case.” AIG Baker Sterling Heights, LLC v. Am. Multi-Cinema, Inc., 579 F.3d 1268, 1270-71 (11th Cir. 2009).

         Relying on a narrow exception that relieves a district court from complying with a mandate where the decision is “clearly erroneous and would work manifest injustice, ” United States v. Amedeo, 487 F.3d 823, 830 (11th Cir. 2007) (citation omitted), the ABC Board insists that the mandate rule does not constrain this court. Unfortunately for the ABC Board, a close look at the mandate's implicit ruling (Part A below) juxtaposed with the exception's narrow application (Part B below) demonstrates that this court cannot make the requested exception to the mandate rule.

         A. The Mandate's Implicit Ruling

         To begin, it would be presumptuous for this court to conclude that the Perry panel was unaware of the failure of the operative complaint to include a Title VII retaliation claim arising from Knight's post-lawsuit supervision of Perry and the lack of tightened argument in the district court as to the factual and legal contours of this unpleaded claim. More than once, the Eleventh Circuit silently has excused a claim's procedural shortcomings in favor of a merits resolution. In Campbell v. Civil Air Patrol, 138 F. App'x 201 (11th Cir. 2005), for example, the first panel vacated judgment for the defendants on a Title VII retaliation claim, holding that the trial evidence did not sustain the defendants' affirmative defense upon which the jury verdict rested. Id. at 202. On remand, the district court reinstated judgment for the defendants, finding that it was powerless to grant the plaintiff relief because he had failed to make a Rule 50 motion or a new trial motion under Rule 59. See Id. On appeal after remand, the Eleventh Circuit reversed, holding that the district court impermissibly had violated the mandate. It noted that, although the first panel did not expressly address the plaintiff's failure to file Rule 50 and Rule 59 motions, the defendant had raised the issue in the prior appeal, and, therefore, it was “necessarily decided by this Court's decision, at least implicitly.” Id. at 205. The Campbell court continued: “The disposition of these issues was thus included in this Court's mandate and could not be revisited by the district court.” Id.

         In another case, which was on appeal after the district court on remand had refused to enforce the mandate's directive to permit a party's intervention as of right, the Eleventh Circuit explained:

Sylva's failure to file a separate pleading setting forth his claims for relief could not have justified the district court's departure from this court's decision in Piambino I that Sylva be accorded intervention as a matter of right. As we have stated, the law of the case doctrine extends to every issue the reviewing court has decided, both explicitly and by necessary implication. Although our opinion did not explicitly address the procedural requirements of Rule 24, its command that Sylva ...

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