High Court to Clarify if Pleading Rule Sank Title VII Exemption

Title VII of the Civil Rights Act of 1964 provides one set of standards, while the Federal Rules of Civil Procedure supply another. The U.S. Supreme Court will decide in an upcoming case (Younge v. Fulton Judicial Circuit District Attorney’s Office, Ga.) if the Federal Rules of Civil Procedure permit raising an exemption from Title VII as late in judicial proceedings as summary judgment. 

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The case involves what some lower courts have treated as an “affirmative defense” to Title VII: the personal staff exemption, which applies to the personal staff of state or local officials who have been elected to serve in public office. 

More specifically, Title VII says an employee covered by the law does not include “any person elected to public office in any State or political subdivision of any State by the qualified voters thereof, or any person chosen by such officer to be on such officer’s personal staff.” Gender-based discrimination against such personal staff violates federal law, but such claims are covered by the Government Employees Rights Act, not Title VII.

In this case, the defendant allegedly failed to raise the exemption in the pleadings. But, despite the Federal Rules of Civil Procedure, the defendant was allowed to raise the defense later in a summary judgment motion without amending its answer to the complaint. The lower courts ruled against the plaintiff, who filed a motion for the Supreme Court to review the case, which the high court recently granted.

Background

The plaintiff, Jasmine Younge, worked at the Fulton Judicial Circuit District Attorney’s office for two months in 2019 as then-District Attorney (DA) Paul Howard Jr.’s deputy chief of staff and director of policy and programs. Howard hired her at a salary of $120,282. He initially tried to hire her as a director at a salary of $125,000 but Fulton County did not allow him to hire Younge at that title and salary combination, according to the 11th U.S. Circuit Court of Appeals in its decision. Howard made Younge’s formal title “deputy chief of staff” to allow him to pay a salary close to the $125,000 that Younge had requested.

Younge worked for the DA’s office, where she was third in command after Howard, whom she reported to, and his chief of staff. Younge supervised more than 30 employees and 15 to 20 different policies and programs implemented by the DA’s office. She testified that she frequently met with dignitaries, community leaders, and members of the public who visited the office.

In carrying out her duties, Younge and Howard worked closely together, the 11th Circuit noted. Howard sent Younge messages on the weekend. As Younge averred, Howard “demanded constant availability around the clock” from her. She testified that her schedule was “pretty much the schedule that … Howard had.” Howard testified that he closely supervised Younge’s work because voters would judge him based on how Younge interacted with the public and implemented policies and projects on behalf of the DA’s office. 

She was “always in and out of his office” because she was one of “the essential folks” in the office. Younge testified that she was “literally [Howard’s] go-to person for almost everything,” and was “one of the few on staff that was just able to just walk into his office at any time.” Howard similarly testified that Younge was a “key member” and “a high-ranking part” of the DA’s office.

Two months after she started her job, Younge told Howard she was pregnant. 

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“Afterwards, Howard stopped meeting with Younge, excluded her from his meetings with others, treated her dismissively, and reassigned some of her work duties,” the 11th Circuit said. “Two weeks later, he fired Younge.”

But Howard testified in the case that long-tenured staff made numerous complaints about Younge. After he overheard Younge berating an attorney in the hallway outside his office, he told Younge that she was not working out and that he intended to terminate her. “A day or two later, Howard found a letter on his desk from Younge stating that she was pregnant,” according to the DA’s office. “He later terminated her employment as he had told her he would.”

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Younge sued for pregnancy discrimination in violation of Title VII.

There was no documentation of misconduct in her employee records prior to her dismissal, the plaintiff said in her petition for review by the Supreme Court and the district court held — which the magistrate judge said was “undisputed.” The magistrate judge wrote, “None of these complaints were documented and placed in Younge’s personnel file until weeks after she was terminated.”

Nevertheless, the lower courts, including the appeals court, determined that Younge was a member of Howard’s personal staff, noting that Title VII’s personal staff exemption is fact specific. Whether someone fits within the exemption is determined, according to the 11th Circuit, by looking at:  

• Whether the elected official has plenary powers of appointment and removal.
• Whether the person in the position at issue is personally accountable to only that elected official.
• Whether the person in the position at issue represents the elected official in the eyes of the public.
• Whether the elected official exercises a considerable amount of control over the position.
• The level of the position within the organization’s chain of command.
• The actual intimacy of the working relationship between the elected official and the person filling the position.

The appeals court determined that five of the six factors weighed in favor of finding that Younge was on Howard’s personal staff. Only the factor concerning the elected official’s hiring and firing power was neutral. 

“Younge was not an employee under Title VII and she cannot invoke Title VII’s protections,” the 11th Circuit said.

Plaintiff’s Objections 

In her petition for review by the Supreme Court, the plaintiff said the 11th Circuit has dismissed the literal requirements of the Federal Rules of Civil Procedure “as mere technicalities that often need not and should not be enforced.”

She told the Supreme Court that the 11th Circuit’s treatment “is impermissible under the plain language of the Federal Rules of Civil Procedure.”

Moreover, there is a clear split in the appeals courts on this issue, she emphasized. 

Defendant’s Response

In its brief opposing review by the Supreme Court, the DA’s office claimed it had articulated the defense by using the statutory language from Title VII to describe the employees who are not covered by the law. In the defendant’s answer to the amended complaint, the defendant expressly stated that the plaintiff was a member of the attorney’s personal staff. 

The Federal Rules of Civil Procedure require that defenses be stated in “short and plain terms,” the defendant emphasized. Initial pleadings are to provide fair notice of the defense’s assertions and fairly impart notice of sufficient factual matter. 

“Expressly admitting that the petitioner was a member of the district attorney’s personal staff — Title VII’s precise term of art — plainly satisfies this standard,” the defendant said. “It has long been this court’s position that cases should be decided on the merits rather than procedural technicalities.”

Plaintiff’s Reply

However, in her reply to the defendant’s brief in opposition, the plaintiff said that the defendant acknowledged before the 11th Circuit that the answer had not pleaded that affirmative defense. The court of appeals repeatedly pointed out that the defendant had failed to plead the affirmative defense, she added. The Supreme Court “rarely addresses an argument raised for the first time” before it, she stated.

The plaintiff added that counsel for the defendant, “candidly acknowledged to the magistrate judge that the reason he had not raised the Title VII affirmative defense before March 2022 — a year after filing the answer — was because until that time he was unaware of that Title VII exemption.” 

The appellate courts have unevenly applied the Federal Rules of Civil Procedure on the pleading question the high court will resolve “for almost four decades,” she stated. “It is important that [the] Federal Rules of Civil Procedure be applied evenly.”