Laura Wheale v. Polk County, Georgia, et al

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-13676
Non-Argument Calendar
____________________
LAURA WHEALE,
Plaintiff-Appellant,
versus
POLK COUNTY, GEORGIA,
HARALSON COUNTY, GEORGIA,
STATE OF GEORGIA,
Defendants-Appellees.
____________________
Appeal from the United States District Court
for the Northern District of Georgia
USCA11 Case: 21-13676 Date Filed: 10/04/2022 Page: 1 of 9

-- 1 of 9 --

2 Opinion of the Court 21-13676
D.C. Docket No. 3:20-cv-00206-TCB
____________________
Before WILLIAM PRYOR, Chief Judge, JILL PRYOR and
BRANCH, Circuit Judges.
PER CURIAM:
Laure Wheale, a judge of the Juvenile Court in the
Tallapoosa Judicial Circuit, appeals the dismissal of her amended
complaint of discrimination and retaliation based on her sex by the
State of Georgia and Polk and Haralson Counties in violation of
Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e-2(a)(1),
2000e-3(a), 2000e-5(e)(3), and the Equal Pay Act, 26 U.S.C. § 206(d).
Wheale also appeals the judgment on the pleadings against her
complaint that the Counties violated her right to equal protection.
See 42 U.S.C. § 1983. The district court ruled that Judge Wheale
failed to state a claim that she was an “employee” under Title VII
or the Equal Pay Act and that she failed to plead facts from which
a factfinder could reasonably infer that the Counties discriminated
against her. We affirm.
We accept as true the following facts alleged in Judge
Wheale’s amended complaint.
See Carson v. Monsanto Co., 39
F.4th 1334, 1337 (11th Cir. 2022). In March 2019, the Chief Judge of
the Tallapoosa Superior Court appointed Judge Wheale as a juve-
nile judge. Judge Wheale received a salary of $121,700, consisting
of $100,000 from the State and the remainder from Polk and Har-
alson Counties. Polk County also paid for Judge Wheale’s health
USCA11 Case: 21-13676 Date Filed: 10/04/2022 Page: 2 of 9

-- 2 of 9 --

21-13676 Opinion of the Court 3
insurance and collected her employment forms. The Judge ob-
jected to the salary set by “Polk and Haralson Commissions” as less
than that received by her male predecessor, who had been ap-
pointed in 1997 and received a “total salary of more than $151,000
in 2018.” The Judge also objected because she was unable to hire a
“program coordinator” for four months and was budgeted only
$24,627 for an assistant when her predecessor’s assistant had been
paid “approximately $43,000 per year.”
Judge Wheale alleged that County officials mistreated her.
The County Manager of Polk County “attempted on several occa-
sions to transfer employees” away from the juvenile court and rep-
rimanded the Judge “for using volunteers to screen visitors to her
office.” The Clerk of Haralson County omitted the Judge from
group emails. The District Attorney of the Tallapoosa Circuit
threatened, shortly after Judge Wheale’s appointment, to “remove
the Assistant District Attorney from the Juvenile Court”; the Clerk
of the Superior Court “forbade” the Deputy Clerk from assisting
the Judge; and a supervisor “failed consistently to file [court ap-
pointed special advocate] reports in the Juvenile Court.” Several
officials, including a Polk County Commissioner and a former
court reporter, objected to Judge Wheale’s appointment. In addi-
tion, “[d]efendants” ignored the Judge’s efforts to “create intern-
ship positions within the Juvenile Court”; allowed her predecessor
to delete “juvenile court employee files, past and pending cases,
administrative documents, and . . . key templates of the Juvenile
USCA11 Case: 21-13676 Date Filed: 10/04/2022 Page: 3 of 9

-- 3 of 9 --

4 Opinion of the Court 21-13676
Court”; and denied her “computers [and] office space at the Har-
alson County Courthouse.”
Judge Wheale filed a five-count complaint against Polk
County, Haralson County, and the State. She complained that the
three entities violated Title VII by decreasing her salary, refusing
to provide adequate funding for staff, excluding her from commu-
nications, and failing to provide essential resources because of her
sex and by retaliating after she filed a grievance about the discrim-
ination. In addition, the Judge complained that the entities violated
her right to equal protection by treating her unequally to her male
predecessor. The Judge also complained that the entities violated
the Equal Pay Act by paying her less than her male predecessor and
by retaliating after she objected to her salary.
The Counties moved for judgment on the pleadings and ar-
gued that Judge Wheale’s claims under Title VII and the Equal Pay
Act failed because they were not her employers as a matter of
Georgia law. The Counties also argued that they were not liable
for actions of each other’s employees that were not based on a gov-
ernmental policy or custom or for the actions of officials that the
Counties did not control.
The State moved for dismissal. The State argued that Judge
Wheale’s claims under Title VII and the Equal Pay Act failed on
three grounds: Judge Wheale had not named the State in the charge
she filed with the Equal Opportunity Employment Commission;
the Judge was not an employee under Title VII or the Equal Pay
Act; and the State was not a joint employer with the Counties. The
USCA11 Case: 21-13676 Date Filed: 10/04/2022 Page: 4 of 9

-- 4 of 9 --

21-13676 Opinion of the Court 5
State also argued that, because it was “not a person within the
meaning of § 1983,” the doctrine of sovereign immunity barred the
Judge’s claim of discrimination in violation of her right to equal
protection. In her reply, Judge Wheale “d[id] not contest . . . the
dismissal of her Section 1983 claim against the State.” After a mag-
istrate judge recommended granting the motions of the three enti-
ties, Judge Wheale objected.
The district court granted the motions of the Counties for
judgment on the pleadings and of the State for dismissal. The dis-
trict court ruled that the Judge was not an “employee” covered by
Title VII and the Equal Pay Act,
see Gregory v. Ashcroft, 501 U.S.
452 (1991). The district court also ruled that the Judge’s claim that
the Counties had violated her right to equal protection “fail[ed] as
a matter of law.” The district court determined that the Counties
were not the Judge’s employer and could not be responsible for her
coworkers, that the County lacked control over officials who mis-
treated the Judge, and that the Judge alleged no facts to establish
the Counties had a policy or custom of gender-based discrimina-
tion or from which to infer that its budget allocations were discrim-
inatory.
We review
de novo the dismissal for failure to state a claim
and the judgment on the pleadings.
Carson, 39 F.4th at 1337 (judg-
ment on the pleadings);
Doe v. Samford Univ., 29 F.4th 675, 685
(11th Cir. 2022) (dismissal)
. We accept as true the facts alleged in
the complaint and view them in the light most favorable to Judge
Wheale, as the nonmovant.
Carson, 39 F.4th at 1337.
USCA11 Case: 21-13676 Date Filed: 10/04/2022 Page: 5 of 9

-- 5 of 9 --

6 Opinion of the Court 21-13676
The Judge must qualify as an employee under the relevant
statutes to avoid dismissal of her employment-based claims against
the Counties and the State. Title VII defines an employee as “an
individual employed by an employer, except [for] . . . an appointee
on the policy making level . . . .” 42 U.S.C. § 2000e(f). The Equal
Pay Act similarly defines employees as “any individual employed
by a State, political subdivision of a State, or an interstate govern-
mental agency, other than such an individual . . . who is appointed
by [the holder of a public elective office] to serve on a policymaking
level.” 29 U.S.C. § 203(e)(1), (e)(2)(C)(ii)(III).
The Supreme Court has held that, because judges “are ap-
pointees at the policymaking level,” they are ordinarily not consid-
ered employees.
Gregory, 501 U.S. at 466–67. In
Gregory, two state
court judges argued that the requirement in the Missouri Constitu-
tion that they retire at the age of 70, Mo. Const. art. V, § 26, vio-
lated the Age Discrimination in Employment Act of 1967, 29 U.S.C.
§§ 630(b)(2). 501 U.S. at 455–56. The Governor of Missouri argued
that the judges, who were appointed and later ran for re-election,
were “appointee[s] on the policymaking level” and excluded from
the definition of “employee” like other elected and most high-rank-
ing government officials,
id. § 630(f). 501 U.S. at 465–67. To avoid
altering the usual constitutional balance between the states and the
federal government, the Court applied the plain statement rule,
id.
at 464, under which “it [had to] be plain to anyone reading the Act”
that “Congress ha[d] made it clear that judges are
included ”as em-
ployees,
id. at 467. A contrary reading, the Court explained, would
USCA11 Case: 21-13676 Date Filed: 10/04/2022 Page: 6 of 9

-- 6 of 9 --

21-13676 Opinion of the Court 7
intrude on the right of a State as a sovereign to “prescribe the qual-
ifications of their own officers and the manner in which they shall
be chosen.”
Id. at 460–62 (quoting
Boyd v. Thayer, 143 U.S. 135,
161 (1892)). The Court considered judges to be policymakers be-
cause they “exercised discretion concerning issues of public im-
portance.”
Id. at 467. Because “[i]t [was] at least ambiguous
whether a state judge” qualified as a policymaker and the “statute
. . . plainly exclude[d] most important state public officials, [the
Court reasoned that the phrase] ‘appointee on the policymaking
level’ [was] sufficiently broad . . . [to remove] appointed state
judges” from the protections of the Act.
Id.
The district court did not err by dismissing Judge Wheale’s
claims against the Counties and the State based on Title VII and the
Equal Pay Act. Like the Age Discrimination Act, Title VII and the
Equal Pay Act exclude from coverage an appointee on a policymak-
ing level. 42 U.S.C. § 2000e(f); 29 U.S.C. § 203(e)(2)(C)(ii)(III). Judge
Wheale was appointed to the juvenile court by the Chief Judge of
the Tallapoosa Superior Court, an elected official, Ga. Code § 15-6-
4.1. And like the state judges in
Gregory, juvenile judges in Georgia
formulate policy.
See 501 U.S. at 467. As the district court stated,
juvenile judges exercise discretion when resolving “issues of public
importance, including determining whether a child requires the
care and custody of the state, ordering and supervising reunifica-
tion plans, determining custody and guardianship issues, and deter-
mining visitation rights.” Because Judge Wheale is an appointee
USCA11 Case: 21-13676 Date Filed: 10/04/2022 Page: 7 of 9

-- 7 of 9 --

8 Opinion of the Court 21-13676
engaged in policymaking, she is not an “employee” and not pro-
tected by Title VII or the Equal Pay Act.
Judge Wheale argues she can sue as an “individual” even
though she is not an “employee,” but she concedes that her argu-
ment is foreclosed by our precedents. In
Llampallas v. Mini-Cir-
cuits, Lab, Inc., 163 F.3d 1236, 1243–43 (11th Cir. 1998), and in
Pep-
pers v. Cobb County, Georgia, 835 F.3d 1289 (11th Cir. 2016), we
reaffirmed a holding of our predecessor court that a “workplace
discrimination claim can only be brought by an employee against
his employer,”
id. at 1297. Because Title VII and the Equal Pay Act
address “specific employment relationships,” “[w]e . . . assume that
Congress meant to limit the pool of potential plaintiffs” “to those
individuals who are employees.”
Llampallas, 163 F.3d at 1243. Our
reasoning is consistent with that of the Supreme Court, which has
explained that Title VII, the Equal Pay Act, and the Age Discrimi-
nation Act are “part of a . . . statutory scheme to protect
employees
in the workplace . . . .”
See McKennon v. Nashville Banner Pub.
Co., 513 U.S. 352, 357 (1995) (emphasis added).
The district court also did not err by dismissing Judge
Wheale’s claim that the Counties discriminated against her in vio-
lation of the Equal Protection Clause.
See 42 U.S.C. § 1983. As a
matter of state law, the Counties were not the Judge’s employer
and were not liable for actions of her colleagues.
See Peppers, 835
F.3d at 1301. In Georgia, juvenile courts are one part of a unified
state judicial system, Ga. Const. art. VI, § I, ¶¶I, II, the Counties
have no power over any “[a]ction affecting any court or the
USCA11 Case: 21-13676 Date Filed: 10/04/2022 Page: 8 of 9

-- 8 of 9 --

21-13676 Opinion of the Court 9
personnel thereof,”
id. art. IX, § II, ¶I(c)(7), and a judge of the juve-
nile court is not a “county officer,”
id. art. IX, § I, ¶III. That the
Counties control the budget, Ga. Code § 15-11-52(b), and contrib-
ute to the Judge’s benefits,
id. §§ 15-11-54, 15-11-63, is insufficient
to create an employer-employee relationship.
See Peppers, 835
F.3d at 1297. The Counties also had no authority over and were
not responsible for discriminatory acts by individuals in “any elec-
tive county office,” such as the district attorney, or by “any court
. . . personnel,” like the supervisor who prepared special advocate
reports. Ga. Const. art. IX, § 2, ¶ I(c)(1), (c)(7). The Judge alleged
no facts from which to infer the Counties had a custom or “long-
standing and widespread practice” of discriminating against female
judges.
See Brown v. City of Fort Lauderdale, 923 F.2d 1474, 1481
(11th Cir. 1991). Nor did she allege any facts from which to infer
any discriminatory intent on the part of the Counties. Judge
Wheale’s predecessor and his assistant received higher salaries due
to their longer tenure that led to multiple raises. And under state
law, “[t]he salary, tenure, compensation, and all other conditions
of employment of such employees shall be fixed by the judge [of
the juvenile court], with the approval of the governing authority of
the county.” Ga. Code § 15-11-63(b).
We AFFIRM the partial dismissal of and partial judgment on
the pleadings against Judge Wheale’s amended complaint.
USCA11 Case: 21-13676 Date Filed: 10/04/2022 Page: 9 of 9

-- 9 of 9 --