Hicks v. City of Tuscaloosa, 16-13003.

• Citation: 870 F.3d 1253
• Decision Date: 07 September 2017
• Docket Number: No. 16-13003.,16-13003.
• Parties: Stephanie HICKS, Plaintiff-Appellee, v. CITY OF TUSCALOOSA, ALABAMA, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (11th Circuit)

870 F.3d 1253

Stephanie HICKS, Plaintiff-Appellee,

v.CITY OF TUSCALOOSA, ALABAMA, Defendant-Appellant.

No. 16-13003.

United States Court of Appeals, Eleventh Circuit.

September 7, 2017

Patricia Anne Gill, Law Offices of Patricia A. Gill PC, Birmingham, AL, Julie Lynn Love, Julie L. Love, P.C., Tuscaloosa, AL, Plaintiff–Appellee.

Christopher Lyle McIlwain, Hubbard Wiggins McIlwain & Brakefield, PC, James Pettigrew Woodson, III, Office Of the City Attorney, Tuscaloosa, AL, for Defendant–Appellant.

Randall C. Marshall, American Civil Liberties Union, Montgomery, AL, Lenora M. Lapidus, American Civil Liberties Union of New York State (NYCLU), Galen L. Sherwin, ACLU Foundation, New York, NY, Elizabeth Cara Morris, Hastings College of the Law (U.C.), San Francisco, CA, for Amici Curiae American Civil Liberties Union, American Civil Liberties Union of Alabama, Center for Worklife Law.

Before WILSON and NEWSOM, Circuit Judges, and WOOD,^* District Judge.

WILSON, Circuit Judge:

Stephanie Hicks brought this action against the Tuscaloosa Police Department under the Pregnancy Discrimination Act (PDA) and the Family and Medical Leave Act (FMLA) after her reassignment and constructive discharge. Hicks prevailed at a jury trial, and the City now appeals the denial of its motion for judgment as a matter of law, its motion for a new trial, and the allegedly erroneous jury instructions. After a careful review of the record and the parties briefs, and with the benefit of oral argument, we find no reversible error on any issue; we affirm.

I. Background

Hicks worked for the Tuscaloosa Police Department, first as a patrol officer and then as an investigator on the narcotics task force. She was working on the narcotics task force when she became pregnant in January 2012. Hicks's captain at the time, Jeff Synder, allowed her to work on pharmaceutical fraud cases so she could avoid working nights and weekends. Lieutenant Teena Richardson, Hicks's supervisor, admitted that it bothered her that Captain Synder allowed Hicks to avoid "on call" duty. Despite Richardson telling Hicks more than once that she should take only six weeks of FMLA leave, Hicks took twelve weeks of FMLA leave from August 2012 to November 2012. Meanwhile, Captain Synder was caught embezzling and was replaced with Captain Wayne Robertson.

Prior to her FMLA leave, Hicks received a performance review from her supervisor Richardson that said Hicks "exceeded expectations." But on Hicks's first day back from leave, she was written up. She was also told she should start working with five to seven confidential informants. Hicks overheard Richardson talking to Captain Robertson saying "that b* * * *,"¹ and claiming she would find a way to write Hicks up and get her out of here. And another officer overheard Richardson talking loudly about Hicks saying "that stupid c* * * thinks she gets 12 weeks. I know for a fact she only gets six."

The City argued that Hicks only met with one informant and never even spoke to the others. The City also claimed that Hicks did not want to work nights, declined to meet with an informant after hours because she had to pick up her child from daycare, and chose not to attend a drug bust on a Saturday. Captain Robertson said he met with Hicks to determine why she was not working with the informants and helped her get started by arranging a ride-along with another agent and his informant. When Hicks did not follow up from the ride-along, Captain Robertson requested that Chief Steve Anderson reassign Hicks from the narcotics task force to the patrol division. Hicks countered that she worked several of the informants, and she was not introduced to the rest by their current agent. Hicks was also warned by another agent that Richardson had it out for her.

Following Captain Robertson's recommendation, Chief Anderson met with Hicks in December, only eight days after she returned from FMLA leave. Chief Anderson testified that Hicks preferred Synder (her old Captain) and was not willing to comply with her new boss, Captain Robertson. Chief Anderson reassigned Hicks to the patrol division. Chief Anderson testified that he transferred Hicks solely based on Captain Robertson's recommendation and that he always followed Captain Robertson's recommendations. Captain Robertson testified that when he made his recommendation to Chief Anderson, he did not want it to look like Hicks was transferred because of her pregnancy, given that she had only been back eight days. As a result of the reassignment, Hicks lost her vehicle and weekends off, and she was going to receive a pay cut and different job duties. Additionally, officers in the narcotics task force are not required to wear ballistic vests all day, whereas patrol officers are.

After the reassignment, Richardson wrote a letter outlining the reasons for the demotion. The letter critiques Hicks because when officers went to Hicks's home to pick up her vehicle Hicks did not come to the door. Yet the letter also admits that Hicks's husband came to the door and said Hicks was breastfeeding.

Before she started back in the patrol division, Hicks took time off when a physician diagnosed her with postpartum depression

. Richardson admitted that she asked Hicks if she was suffering from postpartum because "something was different about [her] ... [she] was a new mom and ... new moms go through depressed states." During this leave for postpartum depression, Hicks's doctor wrote a letter to Chief Anderson recommending that she be considered for alternative duties because the ballistic vest she was now required to wear on patrol duty was restrictive and could cause breast infections that lead to an inability to breastfeed. But Chief Anderson did not believe that Hicks had any limitations because other breastfeeding officers had worn ballistic vests without any problems.

When she returned from leave, Chief Anderson met with Hicks again. In accordance with her doctor's suggestion, Hicks requested a desk job where she would not be required to wear a vest and assurances that she would be allowed to take breaks to breastfeed. But because Chief Anderson did not consider breastfeeding a condition that warranted alternative duty, he replied that Hicks's only options for accommodations were (1) not wearing a vest or (2) wearing a vest that could be "specially fitted" for her. He also told her that she would be assigned to a beat that allowed her access to lactation rooms, and that she could get priority to take two breastfeeding breaks per shift. But to Hicks, not wearing a vest was no accommodation at all because it was so dangerous. Furthermore, the larger or "specially fitted" vests were also ineffective because they left gaping, dangerous holes. Hicks resigned that day.

Hicks then filed this suit against the City of Tuscaloosa, and a jury considered four claims: (1) pregnancy discrimination, (2) constructive discharge, (3) FMLA interference, and (4) FMLA retaliation. The jury returned with a verdict for the City on the FMLA interference claim, but in favor of Hicks on all of the other claims. The jury found that the reassignment was discriminatory, in violation of the PDA, and retaliatory, in violation of the FMLA. The jury also found that the City's failure to accommodate Hicks's breastfeeding requests constituted discriminatory constructive discharge, in violation of the PDA. The jury awarded Hicks $374,000. The magistrate judge reduced the award to $161,319.92 plus costs and attorneys' fees.

II. Standard of Review

We review "a district court's denial of a motion for judgment as a matter of law de novo," reviewing all evidence "in a light most favorable to the nonmoving party." Williams v. Dresser Indus., Inc. , 120 F.3d 1163, 1167 (11th Cir. 1997). And we review a district court's ruling on a motion for new trial for abuse of discretion. United States v. Sweat , 555 F.3d 1364, 1367 (11th Cir. 2009) (per curiam).

III. Reassignment

Hicks argued that her reassignment from the narcotics task force to the patrol division was both a discriminatory violation of the PDA and retaliation in violation of the FMLA. The City argues that Hicks did not prove that each of the reasons proffered by the City for her reassignment were false and that discrimination was the real reason. The City maintains that Hicks was reassigned for her poor job performance. The jury found, and we agree, that there was sufficient evidence of discrimination.

The PDA amended Title VII to include discrimination "on the basis of pregnancy, childbirth, or related medical conditions." 42 U.S.C. § 2000e(k). After a jury trial, our job is to decide the ultimate question, which is "whether the evidence, when viewed as a whole, yields the reasonable inference that the employer engaged in the alleged discrimination.... Put another way, the issue is whether there is ‘a convincing mosaic of circumstantial evidence that would allow a jury to infer intentional discrimination.’ " See Holland v. Gee , 677 F.3d 1047, 1056–57 (11th Cir. 2012) (internal citation and quotation marks omitted); Carmichael v. Birmingham Saw Works , 738 F.2d 1126, 1129 (11th Cir. 1984).

To prove her claim under the FMLA, Hicks must show that: "(1) [s]he availed [her]self of a protected right under the FMLA; (2) [s]he suffered an adverse employment decision; and (3) there is a causal connection between the protected activity and the adverse employment decision." Wascura v. City of S. Miami , 257 F.3d 1238, 1248 (11th Cir. 2001) (internal quotation marks omitted).

The evidence taken in the light most favorable to Hicks provides ample evidence that Hicks was both discriminated against on the basis of her pregnancy and that she was retaliated against for taking her FMLA leave. Multiple overheard conversations using defamatory language plus the temporal proximity of only eight days from when she returned to when she was reassigned support the inference that there was intentional discrimination.

Additionally, the City's focus...