139 F.

3d 865

76 Fair Empl.Prac.Cas. (BNA) 1270,

73 Empl. Prac. Dec. P 45,369,
11 Fla. L. Weekly Fed. C 1284
Nancy ARRINGTON, Plaintiff-Appellant,
v.
COBB COUNTY, Robert Hightower, in His Official Capacity
as
Director of Cobb County's Public Safety Commission, Nathan
Wilson, in His Official Capacity as Fire Chief of Cobb
County's Department of Fire and Emergency Service,
Defendants-Appellees.
No. 96-9114.

United States Court of Appeals,

Eleventh Circuit.
April 24, 1998.
As Amended May 28, 1998.
Rehearing Denied July 1, 1998.

Harlan S. Miller, III, David C. Ates, Kirwan, Parks, Chesin & Remar,
P.C., Atlanta, GA, for Plaintiff-Appellant.
Jerry Lovvorn Gentry, Christine C. Daniel, Office of Cobb Cty. Atty. Law
Dept., Marietta, GA, for Defendants-Appellees.
Appeal from the United States District Court for the Northern District of
Georgia.
Before TJOFLAT, BIRCH and MARCUS * , Circuit Judges.
BIRCH, Circuit Judge:

In this appeal, we determine whether material questions of fact exist with

regard to plaintiff-appellant Nancy Arrington's gender discrimination claims

against defendant-appellees Cobb County, Robert Hightower, and Nathan

Wilson. The district court granted summary judgment in favor of appellees after
finding that Arrington had failed to show that she had been discriminated
against on the basis of her gender. For the reasons that follow, we REVERSE.
I. BACKGROUND
2

From 1984 to 1994, Arrington held the job of Assistant Fire Chief for the Cobb
County Fire Department. In 1994, however, appellees eliminated the Assistant
Fire Chief position and demoted Arrington to Lieutenant. This case stems from
appellees' decision to demote Arrington rather than to promote her to Fire Chief
or transfer her to Deputy Chief. Because this appeal is from the district court's
grant of summary judgement, we view the facts in the light most favorable to
Arrington. See Southpace Properties, Inc. v. Acquisition Group, 5 F.3d 500,
504 (11th Cir.1993).

Prior to her demotion in 1994, Arrington served for over twenty years in a
variety of roles within the Cobb County Fire Department. Although County
rules during the 1970's prohibited women from becoming firefighters,
Arrington joined the Department in 1971 as a secretary, later receiving
promotions to Fire Prevention Officer (1978-79) and Fire Lieutenant in charge
of Fire Prevention (1979-84). When Cobb County lifted its prohibition on
female firefighters in 1980, Arrington became a certified firefighter but never
took an active firefighting position.

In 1984, Arrington won promotion to the position of Assistant Chief for

Administration after submitting to a competitive examination. 1 In choosing
Arrington over three other candidates for the Assistant Chief position, Fire
Chief W.D. Hilton relied on Arrington's "performance on the examination, her
excellent job performance ... and her knowledge of fire department operations
and administration." R2-26 Exh. A p 10 at 3 (Hilton Aff.).2 Hilton promoted
Arrington to Assistant Chief with the concurrence of the County Manager and
the Civil Service Board.

In her position as Assistant Chief for Administration, Arrington had a number

of official responsibilities. As the chief administrator for the Department,
Arrington supervised and assessed all six of the Department's Colonels, who
regularly reported to Arrington regarding their respective "Training,"
"Extinguishment," "Fire Marshal," "Budget," "Research and Development," and
"Building and Fleet Maintenance" responsibilities. In addition, Arrington
assisted Chief Hilton in preparing and presenting the Department's budgets,
wrote technical reports, met with the County Manager and County Board of

Commissioners, and spoke to other professional and community groups.

Further, Arrington managed a variety of the Department's special projects. In
1985, for example, Arrington oversaw the development of an Emergency
Medical Services (EMS) program that soon "was reputed to be the best in the
State and one of the best in the Southeast." Id. p 12 at 4. Similarly, Arrington
lead the Department's successful 1988 effort to reduce its insurance
classification, assisting the Department's cause "greatly" with her "knowledge
of all aspects of firefighting, including administrative and operations
knowledge." Id. p 15 at 5. At the same time, Arrington was responsible for "a
territory equal to [that of] other management staff members to be on call for
major fires and emergencies." Id. p 21 at 7.
6

Beyond her official portfolio, Arrington also assumed a broad range of

additional responsibilities during her tenure as Assistant Chief. Although the
County technically had an Assistant Chief for Operations, H.K. Nixon, a
management study of the Department found in 1992 that Arrington was
functioning as Chief Hilton's second-in-command for operations as well as
administration:

7 Assistant Director, Administration [Arrington] is performing outside the

The
boundaries of the job description as it was originally designed. The current
incumbent is performing administrative and operational decisions....
8....
9 job description is written for management of the "Administrative Services
The
Division." However, the current incumbent is serving as second in command and
assisting in supervising and controlling all activities of the Fire Department (i.e.,
supervising/managing line and staff colonels). These are responsibilities of the
Assistant Director, Operations' job description.
10

R2-26 Exh. C at 2, 6.3 In response to this report, Chief Hilton wrote to the
County Manager not only that he agreed that Arrington had assumed an
operations-related role beyond her title, but also that he intended to expand her
official job description to encompass the duties of the Assistant Chief for
Operations (once Nixon retired). See R2-26 Exh. D. In fact, Chief Hilton has
explained that he consciously made Arrington the de facto head of the
Department upon his becoming President of the International Association of
Fire Chiefs in 1990. See R2-26 Exh. A p 17 at 6 (Hilton Aff.) ("In my absence
Assistant Chief Arrington performed the duties of Fire Chief and ran the
department for me.").4

11

Moreover, all of the evidence before the court indicates that Arrington excelled

11

Moreover, all of the evidence before the court indicates that Arrington excelled
as Assistant Chief. Although appellees insist throughout their brief that
Arrington had no right, as someone who did not rise through the ranks, to hold
a high post in the Department, they have not offered any evidence that
Arrington ever performed her official or unofficial duties as Assistant Chief in
anything less than an exemplary manner. Indeed, appellees have made no
attempt to refute Chief Hilton's assessment that "Nancy Arrington, throughout
her tenure with the County Fire Department[,] has earned the respect of her
peers, her department, and fire officials throughout the State and Country." Id. p
19 at 6.

12

In 1993, Chief Hilton announced his retirement (effective in 1994) as the

County moved toward a restructuring of its public safety agencies. Central to
this reorganization effort, the County planned to bring its separate Police, Fire,
and Corrections Departments within one, consolidated Public Safety
Department, thereby reducing administrative and other inefficiencies. Leading
the County's reorganization effort, the newly-installed Public Safety Director,
Robert Hightower, had responsibility for selecting the County's new Fire Chief.
After conducting a series of interviews, Hightower chose Nathan Wilson as the
new Chief, passing over Assistant Chief Arrington and eight other candidates
for the position.5 As an experienced firefighter, Wilson had risen through the
ranks of the Department, from firefighter in 1965 to Colonel at the time of his
selection as Fire Chief. In explaining and defending Wilson's promotion over
Arrington in the course of this suit, Hightower has cited Arrington's lack of
"operational experience" as the key element that rendered her unqualified for
the position.

13

Once Wilson assumed his new position as Chief, he joined Hightower in

determining how to integrate the County's Fire Department into the new Public
Safety Department. Of particular relevance to this case, Wilson and Hightower
decided to replace the two Assistant Fire Chief positions (Administration and
Operations) with a new, consolidated second-in-command position of "Deputy
Chief."6 Upon the Board of Commissioners' acceptance of Wilson and
Hightower's restructuring plan, Wilson chose David Hayes to serve as the new
Deputy Chief, demoting Arrington to Lieutenant.7 Like Wilson, Hayes had
risen through the ranks from firefighter to Colonel before his most recent
promotion to Deputy Chief, and Wilson has explained and defended his passing
over of Arrington as a reflection of her lack of "operational experience" in
fighting fires.8

14

Following her demotion, Arrington brought suit against the County, Hightower,
and Wilson in the district court. Specifically, Arrington alleged that appellees
had discriminated against her on the basis of her gender in (1) denying her the

Fire Chief position, (2) denying her the Deputy Chief position, and (3)
demoting her to Lieutenant, in violation of Title VII of the Civil Rights Act of
1964, 42 U.S.C. 2000e et seq., and the equal protection clause of the
Fourteenth Amendment (enforced through 42 U.S.C. 1983). Further,
Arrington claimed that the appellees had violated the Equal Pay Act, 29 U.S.C.
206(d), by (1) paying her alleged "successor" Hayes a higher salary as Deputy
Chief than she had received for her "substantially equal" work as Assistant
Chief and (2) paying her less as a Lieutenant than her male Lieutenant peers.
15

After appellees moved for summary judgment, the district court assigned the
case to a magistrate judge for evaluation. In a Report & Recommendation ("R
& R"), the magistrate judge suggested that the district court: (1) grant summary
judgment in favor of appellees on Arrington's Title VII "Fire Chief" claim,
because Arrington had failed to file a timely EEOC charge regarding the
appellees' failure to promote her to that position; (2) grant summary judgment
in favor of appellees on Arrington's 1983 Fire Chief equal protection claim,
based on the same untimeliness rationale; (3) proceed to trial on Arrington's
Title VII and 1983 claims regarding the Deputy Chief position, on the ground
that material issues of fact existed with regard to Arrington's qualifications for
that position;9 (4) grant summary judgment on behalf of appellees on
Arrington's claims of discriminatory demotion to Lieutenant, on the ground that
the County's civil service law required her demotion to her previous rank
(Lieutenant) upon the elimination of her job as Assistant Chief; (5) deny
summary judgment on Arrington's Equal Pay Act claim of discrepancy between
Deputy Chief Hayes's salary and her former salary as Assistant Chief, because
of disputed material facts; and (6) grant summary judgment on behalf of
appellees on Arrington's Equal Pay Act claim regarding alleged discrepancies
between her current pay and that of other Lieutenants, because any inequalities
regarding Arrington's current pay were required by the County's even-handed
civil service rules.

16

Following the magistrate judge's initial R & R, Arrington objected to the

district court that the timing of her EEOC complaint was irrelevant to her
1983 claim for violations of her constitutional right of equal protection.
Subsequently, the magistrate judge submitted a Supplemental R & R ("SR &
R") addressing Arrington's concerns. In this SR & R, the magistrate judge
agreed with Arrington that her 1983 Fire Chief claim could not be dismissed
on the basis of her untimely EEOC charge. Upon reaching the merits of
Arrington's 1983 Fire Chief claim, however, the magistrate judge found, sua
sponte, that there was no evidence that the County had any "policy" or
"custom" of gender discrimination that might have caused Arrington to be
denied the Fire Chief position. Relying on Monell v. Dep't of Soc. Serv., 436

U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978), and its progeny, the magistrate
judge therefore again recommended that the district court grant summary
judgment against Arrington on her Fire Chief claims against the County and
Hightower.10
17

In response to the magistrate judge's SR & R, Arrington agreed that Monell

required the district court to dismiss her 1983 Fire Chief claim against the
County but objected to the magistrate judge's unexplained additional
recommendation of dismissal against Hightower, who Arrington insisted she
was suing in his personal capacity as well as in his official capacity. Arrington
did not object to the magistrate judge's recommendation for summary judgment
against her on her Title VII Fire Chief claims, her 1983 Fire Chief claim
against the County, her discriminatory demotion claims, or her Equal Pay Act
claim concerning alleged inequalities between herself and her Lieutenant peers.

18

Despite the magistrate judge's recommendation that the district court proceed to
trial on several of Arrington's allegations, the district court granted summary
judgment for appellees on all of Arrington's claims. On Arrington's 1983 Fire
Chief claim against Hightower, the district court held that its judgment against
Arrington on her Title VII Fire Chief claims (because of her untimely EEOC
charge) required it to grant summary judgment also against Arrington on all of
her 1983 Fire Chief claims, lest Arrington use 1983 to circumvent the
administrative requirements for Title VII actions. On Arrington's Deputy Chief
claims, the district court ruled that Arrington had established a prima facie case
of sex discrimination under McDonnell Douglas Corp. v. Green, 411 U.S. 792,
93 S. Ct. 1817, 36 L.Ed.2d 668 (1973). Nonetheless, the district court granted
summary judgment for appellees because it found that Arrington had produced
no evidence that appellees' proffered legitimate, nondiscriminatory reason for
their actions (i.e., Arrington's lack of "operational experience") masked an
illegal motive. Finally, on Arrington's remaining Equal Pay Act claim, the court
granted summary judgment for appellees because it found that the positions of
"Deputy Chief" and "Assistant Chief for Administration" were not substantially
equal.

II. DISCUSSION
19

Summary judgment is only appropriate where there are no genuine issues of

material fact and the moving party is entitled to judgment as a matter of law.
See Fed.R.Civ.P. 56(c). In reviewing the district court's grant of summary
judgment, we review both its factual findings and its legal reasoning de novo.
See, e.g., Combs v. Plantation Patterns, 106 F.3d 1519, 1526 (11th Cir.1997),
cert. denied sub nom., Combs v. Meadowcraft, --- U.S., ----, 118 S.Ct. 685, 139

L.Ed.2d 632 (1998).11 We view the evidence in the light most favorable to the
non-moving party, using the same legal standards appropriate for the district
court. See id. In this appeal, Arrington contests the district court's grant of
summary judgment for appellees on (1) her 1983 Fire Chief claim against
Hightower, (2) her Title VII and 1983 Deputy Chief claims against all three
appellees, and (3) her Equal Pay Act claim against all three appellees regarding
salary disparity between the Deputy and Assistant Chief positions. We address
each of Arrington's bases for appeal in turn.A. THE FIRE CHIEF POSITION
20

The district court granted summary judgment on Arrington's 1983 claims for
significantly different reasons from those recommended by the magistrate
judge in its SR & R. Instead of relying on a Monell finding that the County did
not have a "policy" or "custom" of discrimination, the district court based its
ruling on the principle that a plaintiff may not use 1983 to circumvent the
administrative requirements for a Title VII claim. On appeal, Arrington argues
that the district court erred because her 1983 claim is based on a violation of
her constitutional equal protection rights and not on any statutory violation of
Title VII.

21

To prevail on a claim under 1983, a plaintiff must demonstrate both (1) that
the defendant deprived her of a right secured under the Constitution or federal
law and (2) that such a deprivation occurred under color of state law. See Willis
v. University Health Serv., 993 F.2d 837, 840 (11th Cir.1993). Of course, an
allegation of a Title VII violation cannot provide the sole basis for a 1983
claim. See Allen v. Denver Pub. Sch. Bd., 928 F.2d 978, 982 (10th Cir.1991) ("
[S]ection 1983 cannot be used to assert the violation of rights created only by
Title VII."); Hervey v. City of Little Rock, 787 F.2d 1223, 1233 (8th Cir.1986)
(same). As the district court observed, a plaintiff cannot bootstrap an untimely
Title VII claim by bringing a 1983 action based only on a statutory violation
of Title VII. Cf. Great Am. Fed. Sav. & Loan Assoc. v. Novotny, 442 U.S. 366,
375-78, 99 S.Ct. 2345, 2350-52, 60 L.Ed.2d 957 (1979) (stating that plaintiffs
may not bypass the Title VII administrative process by enforcing their statutory
rights under Title VII through 1985). Arrington, however, does not rest her
1983 Fire Chief claim on any alleged violation of Title VII. Instead, Arrington
satisfies the first element of 1983 by alleging that Hightower violated her
Fourteenth Amendment right of equal protection. See Johnson v. City of Fort
Lauderdale, 114 F.3d 1089, 1092 (11th Cir.1997), reh'g en banc denied, 124
F.3d 223 (1997) (holding that Title VII does not preempt a Fourteenth
Amendment cause of action for employment discrimination under 1983);
Hervey, 787 F.2d at 1233 (holding that a plaintiff whose Title VII claim is
time-barred is "limited to proving that the [defendant] violated her equal
protection rights under the fourteenth amendment in order to recover under

1983.").12 Thus, we conclude that the district court erred as a matter of law by
granting summary judgment to the appellees on this issue.13 Accordingly, we
reverse the district court's grant of summary judgment on Arrington's 1983
Fire Chief claim against Hightower and remand this issue to the district court
for further proceedings consistent with this opinion.14
B. THE DEPUTY CHIEF POSITION
22

Arrington argues that material questions of fact exist with regard to her claims
that appellees discriminated against her on the basis of her gender in denying
her the Deputy Chief position. For Title VII and 1983 gender discrimination
claims, the order and allocation of proof are well established.15 First, the
plaintiff must prove a prima facie case of discrimination by a preponderance of
the evidence. Second, if the plaintiff makes out a prima facie case, the
defendant must produce a legitimate, non-discriminatory reason to explain the
challenged action. Third, should the defendant carry this burden, the plaintiff
must show by a preponderance of the evidence that the defendant's proffered
explanation was a pretext for discrimination. See Texas Dept. of Community
Affairs v. Burdine, 450 U.S. 248, 252-53, 101 S.Ct. 1089, 1093, 67 L.Ed.2d
207 (1981).

23

Since Arrington has produced no direct evidence that appellees' harbored an

illegal motive for refusing her the Deputy Chief position, she must rely on the
test set out in McDonnell to establish her prima facie case of discrimination
through circumstantial evidence. Under this four-pronged test, Arrington must
show that (1) she is a member of a protected class, (2) she applied and was
qualified for the Deputy Chief position, (3) she was rejected in spite of her
qualifications, and (4) the Deputy Chief position went to an equally or less
qualified person who was not a member of a protected class. See McDonnell,
411 U.S. at 802, 93 S.Ct. at 1824; Batey v. Stone, 24 F.3d 1330, 1334 n. 11
(11th Cir.1994). 16 Plainly, Arrington is a member of a protected group
(women), did not receive the position at issue (Deputy Chief), and lost the
position at issue to a person who was not a member of a protected class (the
new, male Deputy Chief, Hayes).

24

Appellees, however, argue that Arrington was not qualified for the Deputy
Chief position because she lacked the "operational experience" necessary for
the proper performance of the job. As part of the County's reorganization of its
public safety agencies, the appellees contend, the new Deputy Chief must
perform operational tasks formerly assigned to the Assistant Chief for
Operations, while the administrative duties of the former Assistant Chief for
Administration have been largely reassigned to the Public Safety Department's

central administrative office. Thus, appellees contend both that Arrington

cannot prove a prima facie case of discrimination and that they had a legitimate,
nondiscriminatory reason for refusing to interview Arrington for the Deputy
Chief position: her lack of operational experience rendered her unqualified to
shoulder the operational responsibilities the new position demanded.17
25

If Arrington had not been able to provide the district court with additional
evidence of her qualification for the Deputy Chief position, the district court's
grant of summary judgment against Arrington might well have been
appropriate; without more, it would seem reasonable to us that a Fire Chief
might choose to pass over a candidate for Deputy Chief who did not have firsthand experience fighting fires. Arrington, however, has presented
circumstantial evidence and testimony that could lead a reasonable jury to
conclude that the appellees' explanations mask an illegitimate, discriminatory
motive.

26

Although the appellees maintain that the job of Deputy Chief is a new,
"operational" position, Arrington's evidence appears to demonstrate that Deputy
Chief Hayes is in fact performing the same tasks formerly performed by
Arrington as Assistant Chief. Shortly after his promotion, Hayes filled out a
"Position Description Questionnaire" in which he detailed his duties as Deputy
Chief and the time he spent on each:

27 sections except Fire Prevention and Arson answer directly to me. As an

All
administrative staff member I must attend various meetings both outside and inside
the department.... [50%]
28 Chief or I must approve all purchase requests.... We monitor activities from
The
month to month to make sure we stay within the budgeted funds and must take
corrective actions if necessary to correct overages.... [8%]
29 chief and I are responsible for the total preparation of our $28,000,000 budget.
The
This includes proposals for new equipment or programs as well as establishing
ongoing budget proposals from existing data as well as known factors that may
influence expenditures.... [5%]
I oversee the Emergency Medical Services program of the county.... [20%]
30
I31answer large or unusual fire and rescue calls on an emergency basis. Once on the
scene I assume responsibility for the incident even if I don't take command of the
incident. [5%]
I am responsible for the writing of many technical papers, reports and projects for
32

the department.... [10%].

33 time to time I speak to various outside organizations representing the
From
department.... [1%]
I34am a member of various committees or organizations including the Cobb County
Emergency Medical Services Council, the Excel Alumni Association, and the
Georgia Firefighters Burn Foundation. [1%]
35

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

she served as Assistant Chief. Like Deputy Chief Hayes, Arrington supervised
and assessed the various section leaders within the Department, and she
prepared and policed the Department's budgets. Like Hayes, Arrington also
oversaw the County's EMS program; in fact, she was responsible for the
program's creation. Moreover, Arrington, like Hayes, was on call to take
responsibility for a variety of emergency situations, and she prepared a variety
of technical papers and reports. Finally, like Hayes, Arrington commonly
represented the Department both before the County Commission and before a
variety of public and private groups.18 Again, past and present statements by
Arrington's former superior, former Chief Hilton, call into question appellees'
explanations for their behavior. In response to the 1992 personnel study of the
Department, for example, Hilton reported that:

36
[Arrington]
works jointly with me to provide the total fire and EMS service to our
citizens. Nothing goes out of our building, either to our own people, interdepartment,
or to the public, without her approval. She assigns work to the Colonels and makes
decisions daily about every phase of our service. There has to be a coordination of
daily operations and someone to keep everyone going down the same road and out
of the ditches. I depend completely on her to do this and trust her to make any
decision necessary in my absence to carry on. She is expected to and very often does
present new programs or better ways of doing what we do. This requires research
and heavy contact with other fire services organizations.
37

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

I38concur that Nancy Arrington was performing the duties of managing and
supervising the operations side of the Fire Department along with being responsible
for the administrative aspects of the Department. Nancy Arrington was second in
command of the entire Cobb County Fire Department.
39

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

responsibilities of current Deputy Chief Hayes and former Assistant Chief

Arrington, we have difficulty finding that reasonable minds could not differ
concerning appellees' claims that Arrington was unqualified even to be
interviewed for the Deputy Chief position.19 Thus, we conclude that a jury
might reasonably infer that Arrington was qualified for the Deputy Chief
position, thereby both establishing the final element of Arrington's prima facie
case and significantly undermining the credibility of appellees' asserted
nondiscriminatory explanation for their actions.20
40

The only question remaining, then, is whether Arrington may proceed to trial
on evidence that only undermines the credibility of appellees' asserted reason
for not considering her for the Deputy Chief position, without directly showing
that appellees harbored an illegal motive. As this court has repeatedly held, a
Title VII plaintiff may defeat a motion for summary judgment by undermining
the credibility of a defendant's explanation for its actions:

41
[P]roof
that a defendant's articulated reasons are false is not proof of intentional
discrimination; it is merely evidence of intentional discrimination. However,
evidence of intentional discrimination is all a plaintiff needs to defeat a motion for
summary judgment. That evidence must be sufficient to create a genuine factual
issue with respect to the truthfulness of the defendant's proffered explanation.
42

Howard v. BP Oil Co., 32 F.3d 520, 525 (11th Cir.1994). 21 In this case,
Arrington has produced sufficient evidence undermining appellees' explanation
for denying her the Deputy Chief position that a reasonable jury might infer
that the appellees intentionally discriminated against Arrington, in violation of
her Title VII and equal protection rights. Both the appellees and the district
court, however, appear to have misread our precedents as to the type of proof
required of a plaintiff in a discrimination case based on circumstantial evidence.
In ruling for the appellees, the district court explained that "Plaintiff has not
presented any evidence to suggest that sexual discrimination had anything to do
with her not being appointed to the position of Deputy Chief. Plaintiff's
inability to show this is fatal to her effort to avoid a ruling of summary
judgment in favor of defendants." R3-36 at 20. Requiring such a direct showing
of discriminatory intent from Arrington, though, would not only contradict our
precedents but would also would make it impossible for a plaintiff to prevail on
any discrimination case based solely on circumstantial evidence. See Combs,
106 F.3d at 1536-38. Thus, we conclude that the district court has erred both in
its assessment of the facts and in its analysis of the law, and we reverse
thedistrict court's grant of summary judgment against Arrington on her Deputy
Chief claims.

C. THE EQUAL PAY ACT CLAIM

43

To establish a prima facie case under the Equal Pay Act, an employee must
show that "an employer pays different wages to employees of opposite sexes
'for equal work on jobs the performance of which requires equal skill, effort,
and responsibility, and which are performed under similar working conditions.'
" Corning Glass Works v. Brennan, 417 U.S. 188, 195, 94 S.Ct. 2223, 2228, 41
L.Ed.2d 1 (1974); Waters v. Turner, Wood & Smith Ins. Agency, Inc., 874 F.2d
797, 799 (11th Cir.1989). To establish a prima facie case, a plaintiff need only
demonstrate that the jobs at issue are substantially similar; a plaintiff does not
have to show that the skills or qualifications of the actual male and female
employees holding the positions are also substantially equivalent. See Miranda
v. B & B Cash Grocery Store, Inc., 975 F.2d 1518, 1533 (11th Cir.1992) ("
[O]nly the skills and qualifications actually needed to perform the jobs are
considered."). Moreover, "[t]he prima facie case ... focuses solely on the
primary duties of each job, not duties that are incidental or insubstantial," and,
although formal job titles or descriptions may be considered, the controlling
factor in the court's assessment of whether two jobs are substantially equal
must be actual job content. See id. Finally, a plaintiff does not have to prove
that two jobs are identical but rather must show that the "skill, effort and
responsibility required in the performance of the jobs are substantially equal."
Id. (emphasis added) (internal quotation omitted).22

44

On appeal, Arrington argues that the district court erred in concluding that no
material issue of fact existed as to whether the Deputy and Assistant Chief
positions were substantially equal. Given our comparative analysis above, we
agree with Arrington that a jury might reasonably conclude that the Deputy and
Assistant Chief positions are "substantially equal." While appellees emphasize
Arrington's formal job title, Arrington points to significant evidence indicating
that she exercised a wide range of duties as "second in command" to former
Chief Hilton, duties which very closely track those actually performed by
Deputy Chief Hayes.23 At a minimum, Arrington has established a material
question of fact with regard to her Equal Pay Act claim.24 Thus, we reverse the
district court's entry of judgment on this claim and remand it to the district court
for further proceedings.

III. CONCLUSION
45

The district court has committed a number of factual and legal errors in granting
summary judgment for appellees. Therefore, we REVERSE the district court's
grant of summary judgment to Hightower on Arrington's 1983 Fire Chief
Claim and REMAND that claim to the district court for further consideration
consistent with this opinion. Further, we REVERSE the district court's grants of
summary judgment on Arrington's Title VII and 1983 Deputy Chief claims,

as well as on Arrington's Equal Pay Act claim regarding her Deputy Chief
"successor," and REMAND these claims for further proceedings in the district
court.

Honorable Stanley Marcus, U.S. District Judge of the Southern District of

Florida, sitting by designation as a member of this panel when this appeal was
argued and taken under submission. On November 24, 1997, he took the oath
of office as a United States Circuit Judge of the Eleventh Circuit

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

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

This management audit was conducted by the County's Personnel Department,

rather than by officials from within the Fire Department

Appellees apparently do not dispute that Arrington exercised a broad range of

duties as Assistant Chief. Appellees advance no argument or evidence
undercutting the County's report on Arrington's operational activities, nor do
they offer any argument or evidence contradicting Chief Hilton's assessment of
Arrington's role within the Department

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

Hightower and Wilson's motives for this element of their reorganization plan
are in dispute and are addressed below. Hightower and Wilson contend that the
new Deputy Chief position was designed primarily as an "Operations" job, with
most of the administrative responsibilities of the former Assistant Chief for
Administration shifting to a centralized administrative staff for the entire Public
Safety Department. Arrington, however, contends that the Deputy and Assistant
Chief jobs are essentially the same, and that appellees used the ongoing
restructuring effort to replace her with Hayes, discriminating against her on the
basis of her gender

Hightower and Fenton also participated in interviewing the candidates for

Deputy Chief, but it was Wilson who actually selected Hayes for the job. The
County's civil service law required Arrington's demotion to her last previous
rank (Lieutenant) upon the County's elimination of her Assistant Chief position

Furthermore, Cobb County, Hightower, and Wilson have insisted before this
court that Arrington was not even qualified for her former Assistant Chief
position, though they offer no evidence to support this assertion

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

10

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

11

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

12

There is no dispute that Hightower acted under the color of state law in denying
Arrington the promotion to Fire Chief, satisfying the second element of 1983

13

In their brief for this court, appellees ignore the district court's confusion
regarding the relationship between Title VII and 1983; appellees strangely
declare that the district court based its decision on the merits of Arrington's
1983 Fire Chief claim. Appellees' contention that the district court reached the
merits of this issue is, at best, misleading. Because the district court did not
discuss the magistrate judge's decision on the merits of Arrington's 1983 Fire
Chief claims, we decline at this stage to evaluate the merits of Arrington's
remaining Fire Chief claim against Hightower. We note, however, that
Arrington has insisted that she seeks to pursue Hightower in his personal
capacity. Given our liberal system of notice pleading, and appellees' apparent
understanding throughout their submissions to the magistrate judge and district
court that Arrington sought to hold Hightower liable in his personal as well as
in his official capacity, we expect that the district court will allow Arrington to
amend her complaint as necessary to reflect the true nature of her claims. Cf.
Espanola Way Corp. v. Meyerson, 690 F.2d 827, 829 (11th Cir.1982) (rules of
notice pleading apply to complaints in 1983 actions)

14

We note again that Arrington has conceded that the district court's judgment on
her 1983 Fire Chief claim against the County is justified on the alternative,

Monell grounds relied upon by the magistrate judge. Arrington, therefore, has
not appealed the district court's grant of summary judgment for the County on
this claim. On remand, the only remaining claim based on Arrington's failure to
receive promotion to Fire Chief will be her 1983 claim against Hightower
15

This framework would also apply to any evaluation of the merits of Arrington's
1983 Fire Chief claim against Hightower, discussed above

16

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

17

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

18

The appellees have offered no evidence of any significant, specific,

"operational" task actually performed by the Deputy Chief that Arrington is not
at least arguably qualified to perform or that she has not already actually
performed as de facto head of the County's Fire Department under Chief Hilton.
We also note that it is curious that appellees believed Arrington to be
sufficiently qualified for the Fire Chief position to consider her through two
rounds of interviews, yet found her to be so lacking in qualification for the
Deputy Chief position as to be unworthy of consideration

19

Significantly, appellees make no attempt to dispute any of this evidence.

Instead, appellees rely on the bald proposition that it would be absurd for a
person without actual line experience fighting fires to become the second-incommand (let alone the Chief) of a fire department. Although we recognize that
such an argument might ultimately persuade a jury, we must view the evidence
in the light most favorable to the non-moving party, Arrington. From this
perspective, we cannot ignore the substantial evidence from which a jury might
reasonably infer that appellees' emphasis on operational experience was a

pretext for gender discrimination

20

A plaintiff may rely on the same evidence both to establish her prima facie case
and to cast doubt on the defendant's nondiscriminatory explanations. See Carter
v. Three Springs Residential Treatment, 132 F.3d 635 (11th Cir.1998)

21

We understand that there may once have been some confusion regarding our
court's precedents on this issue. See Isenbergh v. Knight-Ridder Newspaper
Sales, Inc., 97 F.3d 436 (11th Cir.1996) (criticizing Howard ). Today, however,
Howard clearly represents the law in this circuit, see Combs, 106 F.3d at 152935 (collecting cases), as the author of Isenbergh has subsequently
acknowledged, see Evans v. McClain of Ga., Inc., 131 F.3d 957, 964-65 (11th
Cir.1997) (per curiam)

22

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

23

We regret that appellees have chosen not to discuss the various reports and
affidavits upon which Arrington relies to demonstrate the extent of her actual
responsibility as Assistant Chief. Given such unquestioned evidence, appellees'
repeated references to Arrington's formal job title and job description as
Assistant Chief for Administration are unpersuasive

24

Appellees argue for the first time on appeal that no significant disparity exists
between Hayes' salary as Deputy Chief and Arrington's salary as Assistant
Chief. Because this argument was not fairly before the district court, we decline
to address it here