                                                         [PUBLISH]



           IN THE UNITED STATES COURT OF APPEALS
                  FOR THE ELEVENTH CIRCUIT          FILED
                    ________________________ U.S. COURT OF APPEALS
                                                      ELEVENTH CIRCUIT
                                                          02/11/99
                             No. 96-4577
                                                       THOMAS K. KAHN
                      ________________________             CLERK

                  D.C. Docket No. 95-8285-CIV-KLR


SHARI L. LYES,

                                                        Plaintiff-Appellant,

                                 versus

CITY OF RIVIERA BEACH, FLORIDA, CINTHIA BECTON, ET AL.,

                                                    Defendants-Appellees.
                      ________________________

               Appeal from the United States District Court
                   for the Southern District of Florida
                     ________________________
                            (February 11, 1999)

Before TJOFLAT, ANDERSON, EDMONDSON, COX, BIRCH, DUBINA,
BLACK, CARNES, HULL, and MARCUS, Circuit Judges and KRAVITCH,
Senior Circuit Judge.


CARNES, Circuit Judge:
      We granted the defendant’s petition for rehearing en banc in this

employment discrimination case to decide two issues. The first is whether

women are a protected class for 42 U.S.C. § 1985(3) purposes, so that a sex-

based conspiracy against women is actionable under that provision. We hold

that they are and it is. We also hold that Congress has the constitutional authority

to prohibit such conspiracies, at least where they involve state action.

      The second issue concerns the test applicable for deciding whether the

employees of two employers are to be aggregated for determining if the

minimum number of employees exist for Title VII coverage. We hold that the

“single employer” aggregation test adapted from cases involving the NLRB, in

which the employers are always private entities, is not applicable to those Title

VII cases in which the employers are state and local government entities. For

those cases we adopt a different test, one which presumes public entities that

are separate under state law will not be aggregated for Title VII purposes. The

plaintiff may rebut that presumption, however, by showing either: 1) that the

state’s purpose for separating the entities under state law was to evade Title VII,

or 2) that the entities are so closely related with respect to the fundamental



                                         2
aspects of employment relationships that the presumption in favor of the state

law’s denomination is clearly outweighed.

      Applying that test to the public entity that employed the plaintiff in this

case, we find there is not enough evidence of interrelatedness to allow a

reasonable fact finder to conclude that the presumption in favor of the state’s

denomination of the entity as separate and distinct from any other state or local

body is clearly outweighed.

                       I. FACTS AND BACKGROUND

      Because the factual and legal background of this case is more fully set forth

in the panel opinion, Lyes v. City of Riviera Beach, Florida, 126 F.3d 1380 (11th

Cir. 1997), vacated and reh’g en banc granted, 136 F.3d 1295 (1998),           we

outline it only briefly here. The plaintiff, Shari Lyes, was hired by the City of

Riviera Beach Community Redevelopment Agency (the “CRA”) in 1989. Four

years later, the position of Executive Director of the CRA became vacant. The

CRA Board of Commissioners awarded the position to Neil Crilly, a male

employee. When Lyes asked why she was not offered the position, she allegedly

was told by a Board member that she was not qualified because of her sex. Lyes

sued the City, the CRA, the members of the City Council, and Crilly, alleging

                                        3
that they had discriminated against her on the basis of her sex in violation of 42

U.S.C. § 1983, 42 U.S.C. § 1985(3), Title VII, and Florida law.

      The district court granted summary judgment for the defendants on all of

the federal claims, and dismissed the state law claims without prejudice under 28

U.S.C. § 1367(c)(3). The judgment against Lyes on the federal claims was based

on the district court’s conclusions that: (1) Lyes’ 42 U.S.C. § 1983 claims were

foreclosed by our decision in McKinney v. Pate, 20 F.3d 1550 (11th Cir. 1994);

(2) women are not a protected class under 42 U.S.C. § 1985(3), therefore, sex-

based conspiracy claims are not actionable under that provision; and (3) the

CRA did not employ fifteen or more people itself as is required for Title VII

coverage, and under the NLRA’s single employer aggregation test the CRA and

the City should not be aggregated. Lyes appealed the district court’s grant of

summary judgment, and the panel reversed.

      The panel held that Lyes’ §1983 claims were based at least in part on the

Equal Protection Clause, not solely on the Due Process Clause as the district

court had thought. Accordingly, the panel remanded the § 1983 claims for

reconsideration in light of equal protection principles. See Lyes, 126 F.3d at



                                        4
1387-89. We adhere to the panel’s reasoning and result on the § 1983 claim, and

reinstate that portion of the panel opinion.

       With regard to Lyes’ § 1985(3) claim, the panel held that women are a

protected class under that provision, so that sex-based conspiracies against them

are actionable under it. See id. at 1389-91. We address that issue in Part II of this

opinion.

      As to the Title VII claim, the panel agreed with the district court that the

single employer aggregation test developed in the NLRB context should be used

to determine whether the CRA and the City are a single employer for Title VII

jurisdictional purposes. See id. at 1385-86. However, the panel disagreed with

the district court on the result of applying that test to the facts of this case and

concluded there was a genuine issue of material fact as to whether the CRA and

the City are a single employer. See id. at 1386. We discuss those issues in Part

III of this opinion.



      II.    WHETHER WOMEN ARE A PROTECTED CLASS

             UNDER 42 U.S.C. § 1985(3), SO THAT SEX-BASED



                                         5
            CONSPIRACIES AGAINST THEM ARE ACTIONABLE

            UNDER THAT PROVISION

      Lyes claims that the defendants’ actions constituted a conspiracy to deprive

her of equal protection of the laws in violation of 42 U.S.C. § 1985(3). The

district court granted summary judgment in favor of the defendants on that claim,

because it believed that § 1985(3) prohibits only those conspiracies motivated

by racial animus and does not extend to those motivated by sex-based animus

against women. We disagree, at least where, as in this case, the conspirators are

acting under color of state law.

      We begin our discussion by addressing the question of whether women are

a “class of persons” within the meaning of § 1985(3). Because we conclude that

they are, we then address the issue, raised in a dissenting opinion, about the

source of Congress’ authority to protect women from sex-based conspiracies

against them by persons acting under color of state law.

      With regard to the scope of § 1985(3), the language of the statutory

provision is clear and broad. It unequivocally states that:

      If two or more persons in any State or Territory conspire, or go in
      disguise on the highway or on the premises of another, for the
      purpose of depriving, either directly or indirectly, any person or class

                                         6
      of persons of the equal protection of the laws, or of equal privileges
      and immunities under the laws . . , the party so injured or deprived
      may have an action for the recovery of damages, occasioned by such
      injury or deprivation, against any one or more of the conspirators.

42 U.S.C. § 1985(3) (emphasis added). The question, then, is whether women

are “any class of persons” within the meaning of the statute.

      Lyes argues that the textual similarity between the statute and the Equal

Protection Clause of the Fourteenth Amendment, coupled with the fact that the

statute was passed just three years after the Fourteenth Amendment was ratified,

indicates Congress intended the scope of the statute to be coextensive with that

of the Fourteenth Amendment, which prohibits sex-based classifications unless

they “serve important governmental objectives and [are] substantially related to

achievement of those objectives.” Craig v. Boren, 429 U.S. 190, 197, 97 S. Ct.

451, 457 (1976). We need not determine the outer limits of § 1985(3) coverage,

nor the precise relationship between the statute and the Equal Protection Clause,

in order to decide this case. For present purposes, all we need to decide is

whether § 1985(3) protects women as a class of persons from sex-based

conspiracies against them where the conspirators were acting under color of state

law. We conclude that it does, for the following reasons.


                                        7
      “In construing a statute we must begin, and often should end as well, with

the language of the statute itself.” United States v. Steele, 147 F.3d 1316, 1318

(11th Cir. 1998) (en banc)(internal quotation and citation omitted). Here, the text

of the statute indicates that women are a protected class within its domain,

because the statute’s prohibition of conspiracies against “any person or class

of persons” certainly is broad enough to encompass women, and no other

language in the statute excludes them from its coverage. As we noted in Merritt

v. Dillard, 120 F.3d 1181, 1186 (11th Cir. 1997), “the adjective ‘any’ is not

ambiguous; it has a well-established meaning.” Quoting the Supreme Court’s

decision in United States v. Gonzales, 117 S.Ct. 1032, 1035 (1997), we said in

Merritt that “the word ‘any’ has an expansive meaning, that is, ‘one or some

indiscriminately of whatever kind.’” Merritt, 120 F.3d at 1186. In this case, as

in Gonzales and Merritt, “Congress did not add any language limiting the breadth

of that word, so ‘any’ means all.” Id. at 1186 (quoting Gonzales)(internal citation

omitted). Thus, women are within the plain meaning of            “any ... class of

persons,” which describes the statutory scope of coverage.

      Our enthusiasm for applying the plain meaning canon to § 1985(3) is

tempered, however, by the Supreme Court’s decisions in Griffin v. Breckenridge,

                                        8
403 U.S. 88, 91 S. Ct. 1790 (1971), and United Brotherhood of Carpenters &

Joiners v. Scott, 463 U.S. 825, 103 S. Ct. 3352 (1983). In Griffin, the Court

glossed the statutory language with a caution against reading § 1985(3) so

broadly (literally) as to turn it into “a general federal tort law” that would “apply

to all tortious, conspiratorial interferences with the rights of others.” 403 U.S.

at 101-02, 91 S. Ct. at 1798. In order to avoid such a result, the Griffin Court

held that the statute prohibits only those conspiracies motivated by “some racial,

or perhaps otherwise class-based, invidiously discriminatory animus. . . .” Id. at

102, 91 S. Ct. at 1798 (emphasis added). The Court declined to elaborate on the

“perhaps” qualifier, however, stating in a footnote that it “need not decide, given

the facts of this case, whether a conspiracy motivated by invidiously

discriminatory intent other than racial bias would be actionable. . . .” Id. at 102

n.9, 91 S. Ct. at 1798 n.9.

      Consistent with the gloss it placed on the statutory language in Griffin, the

Court held in Scott that § 1985(3) does not reach “conspiracies motivated by bias

towards others on account of their economic views, status, or activities,” 463

U.S. at 837, 103 S. Ct. at 3361, the “others” in that case being nonunion

members. As it had in Griffin, the Court in Scott withheld judgment on whether

                                         9
§ 1985(3) extends beyond “its central concern” of combating conspiracies driven

by race-based animus. See id. at 837, 103 S. Ct. at 3360.

      Thus, Griffin and Scott left open the issue we confront today, namely,

whether a conspiracy motivated by sex-based animus against women is

actionable under § 1985(3). It is clear to us, however, that if Griffin’s “perhaps

otherwise class-based, invidiously discriminatory animus” means anything at all

– and we think it does – it includes sex-based animus against women. Sex-based

classifications receive heightened scrutiny under the Equal Protection Clause,

see Craig, 429 U.S. at 197, 97 S. Ct. at 457, and discrimination based on sex

frequently has been characterized as “invidious.”         See, e.g., Frontiero v.

Richardson, 411 U.S. 677, 686-87, 93 S. Ct. 1764, 1770 (1973) (“[S]tatutory

distinctions between the sexes often have the effect of invidiously relegating the

entire class of females to inferior legal status without regard to the actual

capabilities of its individual members.”); United States v. Chandler, 996 F.2d

1073, 1083 (11th Cir. 1993) (“Invidious factors, such as race or sex, cannot

influence a jury’s recommendation of the death penalty.”).

      Because the statutory language of § 1985(3) is unambiguous, ordinarily

we would not consult legislative history to discern its meaning. See, e.g., United

                                       10
States v. Gonzales, 117 S.Ct. 1032, 1035 (1997) (“Given the straightforward

statutory command, there is no reason to resort to legislative history.”); Ratzlaf

v. United States, 510 U.S. 135, 147 - 48, 114 S.Ct. 655, 662 (1994) (“we do not

resort to legislative history to cloud a statutory text that is clear”). In view of the

Supreme Court’s Griffin and Scott decisions, however, we think it prudent to

note that the legislative history of § 1985(3) is not manifestly inconsistent with

our holding.     Although “[t]he legislative history of the Act confirms the

conclusion that . . . it was primarily motivated by the lawless conduct directed at

the recently emancipated citizens,” Bray v. Alexandria Women’s Health Clinic,

506 U.S. 263, 319, 113 S. Ct. 753, 785 (1993) (Stevens, J., dissenting), it also

reveals that at least some members of Congress believed actionable conspiracies

would include those “against a person because he was a Democrat, . . . or

because he was a Catholic, or because he was a Methodist, or because he was a

Vermonter . . . .” Id. at 296, 113 S. Ct. at 773 (Souter, J., concurring in part and

dissenting in part) (discussing remarks of Senator Edmunds, who managed the

bill on the Senate floor) (citations and quotations omitted). See also Scott, 463

U.S. at 837, 103 S. Ct. at 3360 (although the operative provision originated in a



                                          11
House bill, “Senator Edmunds’ views, since he managed the bill on the floor of

the Senate, are not without weight.”).

        Given prevailing attitudes at the time § 1985(3) was enacted, it is

certainly possible, if not probable, that many legislators who voted for the statute

were not concerned about affording legal protection to women as a class.

Nonetheless, we follow the plain meaning of the statute, because “statutory

prohibitions often go beyond the principal evil to cover reasonably comparable

evils, and it is ultimately the provisions of our laws rather than the principal

concerns of our legislators by which we are governed.” Oncale v. Sundowner

Offshore Servs., Inc., 118 S. Ct. 998, 1002 (1998).

      Any conclusion that women are not a protected class under § 1985(3)

would run into a solid wall of contrary precedent. Relying primarily on the

statutory language and the Supreme Court’s statement in Griffin, the seven other

circuits that have actually decided the issue are unanimous in their view that §

1985(3) applies to conspiracies motivated by sex-based animus against women.

See Libertad v. Welch, 53 F.3d 428, 448-49 (1st Cir. 1995) (“[I]t is logical that,

at the very least, the classes protected by § 1985(3) must encompass those

classifications that merit heightened scrutiny under Equal Protection Clause

                                         12
analysis, of which gender is one.”); National Org. For Women v. Operation

Rescue, 914 F.2d 582, 585 (4th Cir. 1990) (collecting circuit cases), rev’d in

part, vacated in part on other grounds, Bray v. Alexandria Women’s Health

Clinic, 506 U.S. 263, 113 S. Ct. 753 (1993); New York State Nat’l Org. for

Women v. Terry, 886 F.2d 1339, 1359 (2d Cir. 1989) (“By its very language §

1985(3) is necessarily tied to evolving notions of equality and citizenship. As

conspiracies directed against women are inherently invidious, and repugnant

to the notion of equality of rights for all citizens, they are therefore encompassed

under the Act.”); Volk v. Coler, 845 F.2d 1422, 1434 (7th Cir. 1988) (“[Section]

1985(3) extends beyond conspiracies to discriminate against persons based on

race to conspiracies to discriminate against persons based on sex, religion,

ethnicity or political loyalty.”); Life Ins. Co. of N. Am. v. Reichardt, 591 F.2d

499, 505 (9th Cir. 1979) (“[W]e conclude that women purchasers of disability

insurance are a sufficient class [under § 1985(3)].”); Novotny v. Great Am. Fed.

Sav. & Loan Assoc., 584 F.2d 1235, 1243 (3d Cir. 1978) (“The fact that a

person bears no responsibility for gender, combined with the pervasive

discrimination practiced against women, and the emerging rejection of sexual

stereotyping as incompatible with our ideals of equality convince us that

                                        13
whatever the outer boundaries of the concept, an animus against women includes

the elements of a ‘class-based invidiously discriminatory’ motivation.”), vacated

on other grounds, 442 U.S. 366, 99 S. Ct. 2345 (1979); Conroy v. Conroy, 575

F.2d 175, 177 (8th Cir. 1978) (concluding that the district court properly

exercised jurisdiction where plaintiff had alleged a cause of action under §

1985(3) based in part on sex discrimination).

      In addition to the holdings of the circuits we have set out above, one other

circuit has said in dicta that sex-based animus is actionable under § 1985(3). See

Haverstick Enters., Inc. v. Financial Fed. Credit, Inc., 32 F.3d 989, 994 (6th Cir.

1994). Only two circuits have indicated – and then only in dicta – that they would

hold women do not constitute a protected class under § 1985(3). See Deubert v.

Gulf Fed. Sav. Bank, 820 F.2d 754, 757 (5th Cir. 1987); Wilhelm v. Continental

Title Co., 720 F.2d 1173, 1176 (10th Cir. 1984).1




       1
        While the views of other circuits are not binding upon us in any event, we
do accord them respect. But we give views espoused as mere dicta less respect than
we give those that are forged as part of the holding in a case. See McDonald’s
Corp. v. Robertson, 147 F.3d 1301, 1315 (11th Cir. 1998) (Carnes, J., concurring)
(explaining why conclusions stated as dicta are less reliable than those that are
part of a holding in a case).
                                        14
       The grand tally is this. Of the circuits that have squarely confronted and

decided the issue, seven have held that women are a protected class of persons

under § 1985(3), and none have held that they are not. If both holdings and

dicta are counted, eight of the circuits that have taken a position have said that

women are a protected class under § 1985(3); only two have said that they are

not.

       Even though the views of individual Justices are not binding on us, see,

e.g., United States v. Stewart, 65 F.3d 918, 924 (11th Cir. 1995), it is appropriate

in a case of first impression in this circuit to consider the views of those Justices

who have expressed themselves on the issue. In Bray, Justices Souter, Stevens,

and O’Connor all stated independently and unequivocally that they believe

women are a protected class under § 1985(3). See Bray, 506 U.S. at 295-96, 113

S. Ct. at 769-75 (Souter, J., concurring in the judgment in part and dissenting in

part); id. at 322, 113 S. Ct. at 787 (Stevens, J., dissenting); id. at 350, 113 S. Ct.

at 802 (O’Connor, J., dissenting). We add the views of those three Justices to the

decisional mix and give them weight.

       In addition, although the majority opinion in Bray does not explicitly hold

that women are a protected class under § 1985(3), some of its analysis seems to

                                         15
suggest that they are. The issue in Bray was whether attempts to blockade

abortion clinics to keep people from going inside constituted a conspiracy to

deprive a person or a class of persons of equal protection of the laws in violation

of § 1985(3). See Bray, 506 U.S. at 266, 113 S. Ct. at 757-58. The Court

rejected “the claim that petitioners’ opposition to abortion reflects an animus

against women in general,” and explained that “[w]e do not think that the

‘animus’ requirement can be met only by maliciously motivated, as opposed to

assertedly benign (though objectively invidious), discrimination against women.

It does demand, however, at least a purpose that focuses upon women by

reason of their sex. . . .” Bray, at 269-70, 113 S. Ct. at 759. Although Bray did

not hold § 1985(3) outlaws conspiracies driven by sex-based animus against

women, language from the opinion at least hints that it does. We take the hint.

      For all of the stated reasons, we conclude that women are a “class of

persons” within the meaning of § 1985(3), and therefore are protected by that

provision from conspiracies against them motivated by sex-based animus. We

respond now to a point raised by Judge Tjoflat in his dissenting opinion.

      Judge Tjoflat concedes that the Thirteenth Amendment provides Congress

with a valid basis for enacting § 1985(3) insofar as that statutory provision

                                        16
involves race, but questions the constitutional foundation for the provision

insofar as it involves sex. We need not answer that question as it applies to

private actor conspiracies against women, because those are not the facts of this

case. This case involves alleged action under color of state law. All of the

individual defendants are state or local officials, and it is undisputed that any

action they took involving the plaintiff was action under color of state law. Thus,

the only constitutional issue this case presents is whether Congress had a valid

basis for proscribing conspiratorial discrimination against women by persons

acting under color of state law.

      Section 1985(3) does apply to conspiracies under color of state law, as well

as private conspiracies. See, e.g., Bray, 506 U.S. at 268, 113 S. Ct. at 758 (“In

Griffin this Court held, reversing a 20-year-old precedent, see Collins v.

Hardyman, 341 U.S. 651, 71 S. Ct. 937, 95 L.Ed. 1253 (1951), that § 1985(3)

reaches not only conspiracies under color of state law, but also purely private

conspiracies.”). The Equal Protection Clause of the Fourteenth Amendment

protects women from sex discrimination by persons acting under color of state

law. See Craig, 429 U.S. at 197, 97 S. Ct. at 457. Moreover, section 5 of the

Fourteenth Amendment empowers Congress “to enforce, by appropriate

                                        17
legislation, the provisions” of that amendment, including the Equal Protection

Clause. We believe that Congress had ample authority under Section 5 of the

Fourteenth Amendment to include women within the scope of § 1985(3)’s

protection, at least where conspiracies to discriminate against them through

action under color of state law are involved.2




      2
        In his dissenting opinion, Judge Tjoflat flails away at two strawmen he
has constructed. One he labels “the broad reading of the majority’s holding”
and describes as the application of § 1985(3) to all conspiracies to commit
torts arising out of sex-based animus. That broad reading strawman goes
beyond the facts of this case and our holding in it. This case does not involve
all such conspiracies; it involves only conspiracies by state actors utilizing
state action. As Judge Tjoflat himself concedes, § 1985(3) may be applied
constitutionally to such a conspiracy. We leave for another day and case the
issue of whether it may be applied constitutionally to other sex-based animus
conspiracies.

       Judge Tjoflat’s dissenting opinion also attacks the “read more
narrowly” strawman, which he characterizes as inserting a state action
requirement into § 1985(3). We do not insert such a requirement into the
statute. Instead, we simply recognize that where a conspiracy that is covered
by the statute does involve state action, the issue of whether Congress had
authority to prohibit that conspiracy is an easy one. The conspiracy alleged
in this case was motivated by sex-based animus, and such conspiracies fall
within the scope of §1985(3); the conspiracy also involved state action, so
Congress clearly had the authority to prohibit it. We need not and do not go
beyond those two holdings to decide this case.

                                       18
      For all of the reasons stated, we hold that sex-based conspiracies against

women are actionable under § 1985(3), and that where the conspiracies involve

state action, as the one alleged in this case did, Congress clearly had the

constitutional authority to make them actionable. We reverse that portion of the

district court’s summary judgment that is to the contrary.

III. WHETHER THE COMMUNITY REDEVELOPMENT AGENCY

      AND THE CITY SHOULD BE COUNTED TOGETHER AS AN

      “EMPLOYER” UNDER TITLE VII

                                         A.

      We turn now to the question whether the Community Redevelopment

Agency (the “CRA”) and the City should be aggregated and considered as a

single “employer” under Title VII’s definition of that term. Title VII defines

“employer” as “a person engaged in an industry affecting commerce who has

fifteen or more employees for each working day in each of twenty or more

calendar weeks in the current or preceding calendar year, and any agent of

such a person . . . .” See 42 U.S.C. § 2000(e)(b). “Person” is defined as

including “one or more individuals, governments, governmental agencies,

political subdivisions, labor unions, partnerships, associations, corporations, legal

                                         19
representatives, mutual companies, joint-stock companies, trusts, unincorporated

organizations, trustees, trustees in cases under Title 11, or receivers.” See 42

U.S.C. § 2000e(a). Because we have treated the question of whether a defendant

meets the statutory definition of “employer” as a threshold jurisdictional matter

under Title VII, see Virgo v. Riviera Beach Associates, Ltd., 30 F.3d 1350, 1359

(11th Cir. 1994),3 a plaintiff must show that her “employer” had fifteen or more

employees for the requisite period provided under the statute before her Title VII

claims can be reached.

      It is undisputed that the CRA itself, during the relevant time, did not

employ a sufficient number of individuals to fall within the statutory definition

of “employer.” It is also undisputed that if the CRA and the City are counted as

one, collectively they employ enough people to meet that definition. Lyes argues

that the two entities should be aggregated and treated as a single “employer”



       Some judges in other circuits have doubted whether the number of
       3


employees is a jurisdictional question. See Sharpe v. Jefferson Distrib. Co.,
148 F.3d 676, 677-78 (7th Cir. 1998) (Easterbrook, J.) (dicta) (citing Steel
Co. v. Citizens for a Better Env’t, --- U.S. ---, --- - ---, 118 S.Ct. 1003, 1009-
12 (1998)); EEOC v. St. Francis Xavier Parochial Sch., 117 F.3d 621, 624
(D.C. Cir. 1997). The parties were not asked to brief this issue, and we will
not take this occasion to re-examine our circuit precedent holding that
counting employees is a jurisdictional matter.
                                        20
under Title VII, because the CRA and the City are interrelated in their operations

and both entities exercised substantial control over         her   conditions of

employment. By contrast, the CRA and the City contend that they are separate

and distinct legal entities and should be treated as such, which would remove the

CRA from Title VII’s definition of “employer” and effectively deprive us of

jurisdiction over that claim in this case. We must therefore decide what test

applies in determining whether separate state or local governmental entities

should be counted as a single “employer” for purposes of meeting the statutory

definition under Title VII.

                                       B.

      We accord a liberal construction to the term “employer” under Title VII.

See Virgo, 30 F.3d at 1359; McKenzie v. Davenport-Harris Funeral Home, 834

F.2d 930, 933 (11th Cir. 1987); Williams v. City of Montgomery, 742 F.2d 586,

588 (11th Cir. 1984). In keeping with this liberal construction, we sometimes

look beyond the nominal independence of an entity and ask whether two or more

ostensibly separate entities should be treated as a single, integrated enterprise

when determining whether a plaintiff’s “employer” comes within the coverage

of Title VII.

                                       21
      We have identified three circumstances in which it is appropriate to

aggregate multiple entities for the purposes of counting employees. First, where

two ostensibly separate entities are “‘highly integrated with respect to ownership

and operations,’” we may count them together under Title VII. McKenzie, 834

F.2d at 933 (quoting Fike v. Gold Kist, Inc., 514 F.Supp. 722, 726 (N.D. Ala.),

aff’d, 664 F.2d 295 (11th Cir. 1981)). This is the “single employer” or

“integrated enterprise” test. Second, where two entities contract with each other

for the performance of some task, and one company retains sufficient control

over the terms and conditions of employment of the other company’s employees,

we may treat the entities as “joint employers” and aggregate them. See Virgo,

30 F.3d at 1359-60. This is the “joint employer” test. Third, where an employer

delegates sufficient control of some traditional rights over employees to a third

party, we may treat the third party as an agent of the employer and aggregate the

two when counting employees. See Williams, 742 F.2d at 589. This is the

“agency” test.    See generally 2 Barbara Lindemann & Paul Grossman,

Employment Discrimination Law 1309-17 (3rd ed. 1996).




                                       22
      The issue before us involves the “single employer” test.4 In determining

whether two non-governmental entities should be consolidated and counted as

a single employer, we have applied the standard promulgated in NLRA cases by

the National Labor Relations Board. See, e.g., McKenzie, 834 F.2d at 933. This

standard sets out four criteria for determining whether nominally separate

entities should be treated as an integrated enterprise. Under the so-called “NLRB

test,” we look for “(1) interrelation of operations, (2) centralized control of labor

relations, (3) common management, and (4) common ownership or financial

control.” Id. See also Radio and Television Broad. Technicians Local Union

1264 v. Broadcast Serv. of Mobile, Inc., 380 U.S. 255, 256, 85 S.Ct. 876, 877

(1965).5


       4
        Lyes argued before the district court and the panel that the “agency”
test might also be relevant in this case. Maybe, but some of the same factors
discussed below that make the usual “single employer” test (the NLRB test)
difficult to apply in cases involving related governmental entities may also
make the usual agency test a poor fit where public entities are concerned. In
any event, we do not decide any agency issues, because the panel did not
reach them, see 126 F.3d at 1385 n.6, and we limited our briefing request to
the “single employer” issue.
       5
        Courts applying the NLRB “single employer” test to private entities in
Title VII cases have held that not every factor need be present, and no single
factor is controlling. See, e.g., Armbruster v. Quinn, 711 F.2d 1332, 1337-38
(6th Cir. 1983); Rivera v. Puerto Rican Home Attendants Servs., Inc., 922
                                         23
      The four-factor NLRB “single employer” test was first applied in the Title

VII context in Baker v. Stuart Broad. Co., 560 F.2d 389 (8th Cir. 1977). Since

that time, most of the circuits considering whether to integrate multiple entities

under Title VII have seized upon that test. See, e.g., Schweitzer v. Advanced

Telemarketing Corp., 104 F.3d 761, 764 (5th Cir. 1997); Cook v. Arrowsmith

Shelburne, Inc., 69 F.3d 1235, 1241 (2d Cir. 1995); Childs v. Local 18, Int’l Bhd.

of Elec. Workers, 719 F.2d 1379, 1382 (9th Cir. 1983); Armbruster, 711 F.2d at

1337-38 (6th Cir.). We, too, have applied the NLRB test. See McKenzie, 834

F.2d at 933. As one court employing the test noted, the similarity in language

between the NLRA and Title VII, and the fact that statute served as a model for

Title VII, makes decisions under the NLRA a useful resource for interpreting the

language of Title VII. See 29 U.S.C. § 152(2); Armbruster, 711 F.2d at 1336

(“Since it is clear that the framers of Title VII used the NLRA as its model, . .

. we find the similarity in language of the Acts indicative of a willingness to

allow the broad construction of the NLRA to provide guidance in the




F.Supp. 943, 949 (S.D.N.Y. 1996). See also Sakrete of N. Cal., Inc. v.
NLRB, 332 F.2d 902, 905 n.4 (9th Cir. 1964) (stating the same rule in an
NLRB case).
                                       24
determination of whether, under Title VII, two companies should be deemed to

have substantial identity and treated as a single employer.”).

                                        C.

      However useful the four-factor NLRB “single employer” test may be in

Title VII cases where private entities are concerned, the question we face is the

different one of whether that test should be applied where state and local

governmental entities are concerned. In answering that question, we are aware

of Congress’s unmistakable intent that “Title VII principles be applied to

governmental and private employers alike.” Dothard v. Rawlinson, 433 U.S.

321, 331 n.14, 97 S.Ct. 2720, 2728 n.14 (1977). See also Owens v. Rush, 636

F.2d 283, 287 (10th Cir. 1980) (“Governmental subdivisions were brought within

the reach of Title VII” in the 1972 amendments to Title VII “so that ‘[a]ll state

and local government employees would . . . have access to the remedies available

under the Act.’”) (quoting 1972 U.S.C.C.A.N. 2137, 2152).

      But we are also aware of the unmistakable reality that in certain key

respects, governmental entities are different from private ones. We will discuss

some of those differences later. For now, it is worth noting that equal treatment

consists not only of treating like things alike, but also of treating unlike things

                                        25
differently according to their differences.         This is a proposition whose

provenance stretches back to antiquity, see, e.g., Aristotle, The Nicomachean

Ethics, E.6.1131a-1131b (M. Ostwald trans. 1962), and it has as much logical

force now as it had in Aristotle’s day. If we are to apply Title VII’s principles

equally to governmental and private employers in a fair and intelligible manner,

we must apply those principles in a way that respects the differences between

private and public entities. See also Riley v. County of Pike, 761 F.Supp. 74, 76

(C.D. Ill. 1991) (applying the NLRB factors but noting that “[i]n addition to these

factors, when the employers in question are government entities, additional

criteria come into play.”).

      The four NLRB factors are useful for counting employees of private

entities under Title VII, precisely because the test was “developed by the

National Labor Relations Board to determine whether consolidation of separate

private corporations is proper in determining the relevant employer” under the

NLRA. Owens, 636 F.2d at 286 n.2 (emphasis added). Of course, the NLRA

does not cover public employers, see 29 U.S.C. § 152(2), and it is hardly

surprising that a test designed to operate in the context of private entities does not

fit well cases involving governmental entities. States are not the equivalent of

                                         26
corporations or companies, and local government bodies are not the same as

subsidiaries. With this in mind, we join those courts that have concluded that

“the [four-part NLRB] standard is not readily applicable to governmental

subdivisions[.]” Trevino v. Celanese Corp., 701 F.2d 397, 404 n.10 (5th Cir.

1983); Piper v. Junction City Hous. Auth., 1995 WL 88232, at *3 (D. Kan. Feb.

1, 1995). See also Massey v. Emergency Assistance, Inc., 724 F.2d 690, 692

(8th Cir. 1984) (Lay, C.J., dissenting) (“I think it clear such test is not applicable

to a factual situation concerning governmental entities.”).6 But see Artis v.

Francis Howell North Band Booster Ass’n, Inc., No. 97-4320, 1998 WL 846889,

at *6 (8th Cir. Dec. 9, 1998) (applying, without discussion, the NLRB test to a

private entity and a government entity and deciding that they should not be

combined); Massey, 724 F.2d at 690-91 (affirming, without discussion, the

district court’s application of the NLRB test to a government entity and the

decision that it should not be aggregated with a private entity); Vandermeer v.

Douglas Cty., 15 F.Supp.2d 970, 974-75 (D. Nev. 1998) (applying NLRB test to


       In Dumas v. Town of Mt. Vernon, Ala., 612 F.2d 974, 980 n.9 (5th
       6


Cir. 1980), our predecessor court declined without explanation to apply the
NLRB test in a governmental context. While we are not as sanguine as the
panel about distinguishing Dumas, see 126 F.3d at 1385-86, unlike the panel
we are not bound by a prior panel decision. We consider the matter anew.
                                         27
county and local fire and paramedic districts, but noting that “[t]he fact that

Nevada may consider Douglas County and the Districts to be separate political

subdivisions, while relevant, does not control.”); Rivera, 922 F.Supp. at 949;

County of Pike, 761 F.Supp. at 76-77 (applying NLRB test to Pike County and

Pike County State’s Attorney’s office in ADEA case, but concluding that they

should not be treated as an integrated enterprise).

      The most obvious way in which the NLRB “single employer” test is

incompatible with cases involving governmental entities involves the test’s fourth

factor -- “common ownership or financial control.” McKenzie, 834 F.2d at 933.

Governmental subdivisions such as counties or towns, or smaller subdivisions

such as local agencies, may share sources of ultimate political control or funding,

yet be wholly distinct with respect to their day-to-day operations or their control

over relationships with employees. Thus, the “common ownership or financial

control” factor of the NLRB test has no application to the usual case involving

governmental subdivisions.

      Nor is the NLRB test’s third factor, “common management,” McKenzie,

834 F.2d at 933, readily applicable in the case of governmental entities. While

it may be an appropriate yardstick in some instances, in others two public entities

                                        28
may share managers or other employees while remaining politically separate and

distinct. In the present case, for example, each member of the City Council also

serves as a member of the CRA Board of Commissioners, but those city

councillors in their different capacity as commissioners comprise, by law, a

distinct and independent body. The Florida legislation that permits the members

of a local governing body to declare themselves a community redevelopment

agency, explicitly provides that “such members constitute the head of a legal

entity, separate, distinct, and independent from the governing body of the county

or municipality.” Fla. Stat. Ann. § 163.357(b) (West 1990). So the common

management factor, too, is not applicable in the context of governmental entities,

at least not in a case like this one.7

      In addition to the fact that these two prongs do not make sense in the

context of state and local governmental entities, there is another, perhaps more

fundamental reason for not applying the NLRB test. That reason involves

federalism and comity concerns, which should play a significant role in

determining whether to treat as one body two governmental entities that are


       See also Massey, 724 F.2d at 692 (Lay, C.J., dissenting) (arguing that
       7


the “centralized control of labor relations” factor also is not relevant to an
analysis involving local government entities).
                                         29
separate and distinct under state law. When it comes to creating subordinate

public bodies and defining their relationship to one another and to itself, “‘the

state is supreme and its legislative body, conforming its action to the state

Constitution, may do as it will.’” City of Trenton v. State of New Jersey, 262

U.S. 182, 186-87, 43 S.Ct. 534, 536 (1923) (quoting Hunter v. Pittsburgh, 207

U.S. 161, 178, 28 S. Ct. 40, 46 (1907)). Defining the nature and relationship of

such bodies, no less than determining their level of funding, is “uniquely an

exercise of state sovereignty.” DeKalb Cty. Sch. Dist. v. Schrenko, 109 F.3d

680, 689 (11th Cir.) (quoting Stanley v. Darlington Cty. Sch. Dist., 84 F.3d 707,

716 (4th Cir. 1996)), cert. denied, 118 S.Ct. 601 (1997). We owe such

determinations by the state legislature not only deference, but great deference.

      In rejecting the four-factor NLRB test as a means of determining whether

two or more governmental entities should be aggregated for the purposes of

determining if they are an “employer” under Title VII, we do not mean to suggest

that the two remaining prongs of the test, interrelation of operations and

centralized control of labor relations, are not relevant to our inquiry in any way.

But where state or local governmental entities are involved, any indicia of

integration must be considered in a framework that is sensitive to the differences

                                        30
between governmental subdivisions and private entities. See Trevino, 701 F.2d

at 404 n.10.

                                        D.

      Given our conclusion that the traditional NLRB four-factor test is not

readily applicable to the question of whether to aggregate state and local

governmental entities for Title VII purposes, we must decide what standard or

test should apply in its place.8 Our inquiry must be guided by a combination of

“respect [for] the way a state chooses to structure its government[,]” McMillian

v. Johnson, 88 F.3d 1573, 1580-81 (11th Cir. 1996), aff’d, 520 U.S. 781, 117 S.

Ct. 1734 (1997) (citing City of St. Louis v. Praprotnik, 485 U.S. 112, 126, 108

S.Ct. 915, 925 (1988)), as well as recognition of our obligation to accord a liberal

construction to the terms of Title VII. See, e.g., Virgo, 30 F.3d at 1359.

      The strong comity and federalism concerns we have mentioned require that

we accord substantial deference to a state lawmaking body’s determination of

whether two or more governmental entities are separate and distinct. We should

not brush aside     a    state’s own     distinctions between its governmental


       We are not required to decide in this case, and we express no view
       8


about, whether this or some different test should apply to aggregation issues
involving federal governmental entities.
                                        31
subdivisions, because even ostensibly formal distinctions are part of a

government’s ability to shape its own institutions within constitutional bounds,

and we are obligated to respect a state’s right to do so. See McMillian, 88 F.3d

at 1581 (“[W]e heed the Supreme Court’s admonition that federal courts respect

the way a state chooses to structure its government.”). There are few things

closer to the core of a state’s political being and its sovereignty than the

authority and right to define itself and its institutions in relation to each other.

Of course, states cannot abuse that power to evade federal law, but it is unlikely

that a state would structure its state and local entities with that purpose in mind.

Such an evasive purpose is especially unlikely in a state like Florida, which has

enacted its own anti-discrimination legislation and made it applicable to local

governmental agencies. See Fla. Stat. Ann. § 760.02(6) (West 1997) (defining

“person” under the Florida Civil Rights Act of 1992 to include “any

governmental entity or agency.”).

      We think that where a state legislative body creates a public entity and

declares it to be separate and distinct, that declaration should be entitled to a

significant degree of deference, amounting to a presumption that the public

entity is indeed separate and distinct for purposes of Title VII. The presumption

                                        32
may be rebutted in some instances. In particular, if it is established that a state’s

purpose in creating or maintaining nominally separate entities was to evade the

reach of the federal employment discrimination laws, that alone is enough for

those entities to be aggregated when counting employees.

      Even absent an intent to evade the application of federal law, we will

aggregate two or more governmental entities and treat them as a single Title VII

“employer” where other factors so plainly indicate integration that they clearly

outweigh the presumption that the entities are distinct. In order to determine

which factors should be considered in deciding whether the plaintiff has carried

her burden of showing that the presumption has been clearly outweighed, we

look to the factors courts have considered in Title VII cases involving private

employers.

      Despite the primacy of the NLRB test as applied to private employers

under Title VII, “[c]ourts have used numerous formulations in assessing whether

a defendant is an ‘employer’ within the meaning of Title VII and other

employment discrimination statutes.” Rivera, 922 F.Supp. at 949. Our review

of the different factors that have been considered convinces us that they all share

a common focus: all of them seek to determine who (or which entity) is in

                                         33
control of the fundamental aspects of the employment relationship that gave rise

to the claim. See, e.g., id. at 949 (“[The different tests] all have in common a

focus on one factor at issue here: the amount of control or supervision a

defendant exerts.”); Armbruster, 711 F.2d at 1337 (“[C]ontrol over the elements

of labor relations is a central concern” of the NLRB test); Trevino, 701 F.2d at

404 (centralized control of labor relations test “has been further refined to the

point that [t]he critical question to be answered then is: What entity made the

final decisions regarding employment matters related to the person claiming

discrimination?”) (internal quotation and citation omitted); Chester v. Northwest

Iowa Youth Emergency Servs. Ctr., 869 F.Supp. 700, 717-18 & n.10 (N.D. Iowa

1994) (collecting cases and noting that “control of employment decisions and

environment” is one of the central features of the tests).

      Thus, two or more state or local governmental entities will be treated as a

single “employer” under Title VII where one entity exerts or shares control over

the fundamental aspects of the employment relationships of another entity, to

such a substantial extent that it clearly outweighs the presumption that the entities

are distinct. Several factors will guide our determination of whether the

presumption in favor of the distinctness of the public entities is clearly

                                         34
outweighed -- or, at the summary judgment stage, whether a finder of fact could

reasonably conclude that it is clearly outweighed. As we have already noted, the

NLRB factors of “interrelation of operations” and “centralized control of labor

operations,” McKenzie, 834 F.2d at 933, may continue to be helpful in the

inquiry. Useful “indicia of control” may be drawn from the agency context,

including: “‘the authority to hire, transfer, promote, discipline or discharge; the

authority to establish work schedules or direct work assignments; [and] the

obligation to pay or the duty to train the charging party.’” Oaks v. City of

Fairhope, Ala., 515 F.Supp. 1004, 1035 (S.D. Ala. 1981) (quoting Barbara Schlei

and Paul Grossmann, Employment Discrimination Law 846 (1st ed. 1976)). Our

list of factors is not intended to be all inclusive, and consideration must be given

to the totality of the circumstances.

      To summarize, we hold that when assessing whether multiple

governmental entities are a single “employer” under Title VII, we begin with the

presumption that governmental subdivisions denominated as separate and distinct

under state law should not be aggregated for purposes of Title VII. That

presumption may be rebutted by evidence establishing that a governmental entity

was structured with the purpose of evading the reach of federal employment

                                        35
discrimination law.    Absent an evasive purpose, the presumption against

aggregating separate public entities will control the inquiry, unless it is clearly

outweighed by factors manifestly indicating that the public entities are so closely

interrelated with respect to control of the fundamental aspects of the employment

relationship that they should be counted together under Title VII.

      The standard we adopt is not whether a factfinder reasonably could

conclude the plaintiff has overcome the presumption. Instead, the standard is

whether the factfinder reasonably could conclude the plaintiff has clearly

overcome the presumption. The adverb “clearly,” which derives from the

federalism concerns we have discussed, is meant to be limiting. It is a thumb on

the scale, and sometimes it will be decisive because federalism concerns should

sometimes be decisive. Absent evidence of evasive purpose, in order to survive

a motion for summary judgment, a plaintiff will have to show that a reasonable

fact finder could conclude that the presumption of distinctness is clearly

outweighed.

                                        E.




                                        36
      Applying this test to the present case, we conclude that Lyes has not

adduced sufficient evidence to allow a reasonable fact finder to conclude that the

City and the CRA should be treated as a single “employer,” bringing them

within the coverage of Title VII.9 See, e.g., Anderson v. Liberty Lobby, Inc.,

477 U.S. 242, 252, 106 S. Ct. 2505, 2512 (1986) (the court must ask “whether

reasonable jurors could find by a preponderance of the evidence that the plaintiff

is entitled to a verdict . . . .”); Raney v. Vinson Guard Serv., Inc., 120 F.3d 1192,

1198 (11th Cir. 1997) (“[T]he plaintiff is effectively required to put forth her

entire case at summary judgment [to] persuade the court that a reasonable fact

finder could rule in the plaintiff’s favor.”) (internal quotation and citation

omitted).


       9
        In treating the question of whether the City and the CRA are a single
Title VII “employer” as a question of fact, we follow the practice of this
Court in analogous Title VII cases involving private employers. See, e.g.,
McKenzie, 834 F.2d at 933 (“Our role is to decide whether McKenzie
presented sufficient evidence to create a genuine issue concerning whether
Davenport-Harris and Protective should be treated as a single entity.”). See
also Garcia v. Copenhaver, Bell & Assocs., 104 F.3d 1256, 1262-65 (11th
Cir. 1997) (drawing on Title VII cases to hold that “the question of whether
or not a defendant is an ‘employer’ is a substantive element of an ADEA
claim and [is] intertwined with the question of jurisdiction. That being the
case, the resolution of the question must be made by the fact finder deciding
the merits of the claim.”).
                                         37
      Florida law establishes a presumption that the CRA and the City are

separate and distinct bodies. As the district court noted, the State legislature

created community redevelopment agencies as independent legal bodies. See

Fla. Stat. Ann. § 163.356 et seq. (West 1990 & Supp. 1999). With the exception

of certain enumerated powers, they are granted “all the powers necessary or

convenient to carry out and effectuate the purposes and provisions of [the

community redevelopment agency legislation] . . . .” Fla. Stat. Ann. § 163.358

(West 1990 & Supp. 1999). The five City Council members also serve as the

Board of Commissioners of the CRA. But Fla. Stat. § 163.357, which permits

this arrangement, also states that “[t]he members of the governing body shall be

the members of the agency, but such members constitute the head of a legal

entity, separate, distinct, and independent from the governing body of the county

or municipality.” Fla. Stat. Ann. § 162.357(1)(b) (West 1990). See also 1991

Fla. Op. Att’y. Gen. 148 (No. 91-49, 1991). The clear distinction Florida law

draws between the CRA and the City raises the presumption that they are

separate and distinct entities.10

       10
         Moreover, these two entities are more than formally distinct. As the
district court pointed out, the CRA maintains separate bank accounts and
records, and files its own tax returns. It prepares its own budget and keeps its
                                       38
      Looking at the nature of Lyes’s employment relationship itself, we

conclude that she has not produced evidence of interrelatedness with regard to

control over employment sufficient to permit a reasonable fact finder to conclude

that the presumption that the governmental entities are distinct is clearly

outweighed. The CRA Board of Commissioners and its Executive Director

control the fundamental aspects of employment of the CRA’s staff. The

Executive Director hires and supervises the staff, and the Board may hire, fire,

and establish work schedules and assignments. The Executive Director is

employed by the CRA, and he serves at the pleasure of the CRA Board, not at the

pleasure of the City. Employees of the CRA receive their medical benefits, life

insurance and pension plans from the CRA, not from the City. Lyes was

disciplined, suspended and eventually terminated by the Executive Director of

the CRA, and that decision was upheld by the CRA Board, not by the City. All

of these circumstances establish that the CRA retained and exercised control over

the fundamental aspects of its employee relations.


own offices. It is true that the City provides the majority of the CRA’s
funding, but we have already concluded here that the source of a
governmental entity’s funding is a poor indication of whether it should be
aggregated with another; in any event, the CRA still receives close to one-
third of its funds from a source other than the City.
                                       39
      The panel below cited some evidence in support of its conclusion that the

CRA and City should be treated as a single employer. See 126 F.3d at 1386-87.

Of that evidence, two matters deserve discussion. First, the panel pointed to a

performance review of Lyes which was completed by the Executive Director on

a City form, listing the CRA as a department of the City. The performance

review was performed by Tony Smith, who was serving at the time as both City

Manager and interim Executive Director of the CRA. Given his dual duties, we

do not think the fact that he used City stationery has much, if any, significance.

State law cannot be amended by inferences drawn from printed forms.

      Second, the panel noted that Neil Crilly, the CRA Executive Director,

sought review from the City’s personnel director of his decision to discipline

Lyes. We agree with the district court’s conclusion that there was no indication

that this review had any binding effect. Instead, it appears to have been an effort

to seek the opinion of a third party as to whether Crilly had acted fairly in

disciplining Lyes. In this sense, Crilly’s action is not unlike seeking advice from

an expert in employee relations.11


        In reaching its conclusion, the panel also relied heavily on the NLRB
       11


factors of common management and financial control. See 126 F.3d at 1387.
We have already concluded, however, that these factors are not applicable to
                                        40
      Viewing the totality of the circumstances, we readily conclude that Lyes

has not produced evidence sufficient to allow a reasonable fact finder to conclude

that the presumption that the CRA and the City are separate entities is clearly

outweighed and that they should therefore be treated as a single employer under

Title VII.

                                       F.

      Having decided the issues upon which we granted en banc review, we

REMAND this case to the panel for further proceedings not inconsistent with this

decision.




governmental entities.
                                       41
TJOFLAT, Circuit Judge, concurring in part and dissenting in part, in which
BIRCH, Circuit Judge, joins:

      This case requires us to interpret the scope of 42 U.S.C. § 1985(3). Two

possible interpretations will sustain the majority’s holding that the plaintiff in this

case has a prima facie claim. One is that Section 1985(3) applies to all

conspiracies involving sex-based discriminatory animus. The other is that it

applies to conspiracies involving sex-based discriminatory animus in which the

conspirators are state actors.12 The former interpretation is unconstitutional; the

latter interpretation is ridiculous. I therefore dissent.



                                               I.

      The broad reading of the majority’s holding is that any person injured by

a conspiracy to commit a tort arising out of sex-based animus has a cause of




       12
         The majority avoids choosing between these two interpretations by holding that “sex-
based conspiracies against women are actionable under § 1985(3), and that where the
conspiracies involve state action . . . Congress clearly had the constitutional authority to make
them actionable.” Ante at ___. The majority thus reserves the question of whether all sex-based
conspiracies against women are actionable under § 1985(3), or only those in which the
conspirators are state actors. As I will demonstrate, however, neither interpretation can be
sustained, and therefore the question reserved by the majority is nothing more than a choice
between two erroneous statements of law.
action under section 1985(3).13 Section 1985(3), as so interpreted, would be

beyond Congress’ power and thus unconstitutional.

      The Supreme Court has warned us about “[t]he constitutional shoals that

would lie in the path of interpreting § 1985(3) as a general federal tort law.”

Griffin v. Breckenridge, 403 U.S. 88, 102, 91 S.Ct. 1790, 1798, 29 L.Ed.2d 338

(1971). A broad reading of the majority’s holding founders on those shoals.

Specifically, a rule that a conspiracy to commit a tort plus an injury plus sex-

based animus equals a section 1985(3) violation opens the door to substantial

federal intrusion into areas of law previously handled exclusively by state courts.

For instance, every rape involving more than one perpetrator would create a

federal cause of action – the underlying tort would be battery, and sex

discrimination would be inherent in the conduct. Every domestic abuse case in

which the abuser was somehow aided by a friend would be actionable under the


       13
          The statute creates a remedy for persons injured by a conspiracy to “depriv[e] . . . any
person or class of persons of the equal protection of the laws.” 42 U.S.C. § 1985(3) (1994). The
idea that an individual can deprive another individual of the equal protection of the laws is
somewhat confusing. Our cases have made clear, however, that a person deprives another
person of the equal protection of the laws by committing a tort – any tort – against that person.
See United States v. Harris, 106 U.S. 629, 643, 1 S.Ct. 601, 612, 27 L.Ed. 290 (1883) (“The only
way, therefore, in which one private person can deprive another of the equal protection of the
laws is by the commission of some offense against the laws which protect the rights of persons,
as by theft, burglary, arson, libel, assault, or murder.”); McLellan v. Mississippi Power & Light
Co., 545 F.2d 919, 925 (5th Cir. 1977) (en banc).

                                                2
statute. A gang of muggers who target women would also be amenable to suit

under the statute. Indeed, even a group of schoolboys who taunt a female

classmate during recess would be subject to suit under section 1985(3).14

      The greatest potential intrusion, however, would be in the area of

workplace discrimination and sexual harassment. The federal courts are already

involved in these areas through Title VII. The reach of Title VII, however, is

limited in a variety of ways – for instance, it creates liability only for

“employers” as defined under the statute, see 42 U.S.C. § 2000e(b) (1994), and

requires an aggrieved party to file a complaint with the EEOC, see 42 U.S.C. §

2000e-5 (1994).         The majority’s holding effectively casts aside these

limitations.15 Every employee who is fired because of her sex, assuming that

more than one person was involved in the firing decision, would have a federal

cause of action. Male employees who touch women inappropriately – and any

superiors who know about it and do nothing – could be held jointly and severally

       14
          I realize that if, under these factual scenarios, females were replaced with African
Americans, there would be no question that section 1985(3) would provide the victims with a
cause of action. As I demonstrate infra, however, there is a constitutional basis for applying
section 1985(3) in cases of racial animus (the Thirteenth Amendment), while no such basis exists
for extending the statute to cases of sex-based animus.
       15
          The potential use of section 1985(3) to get around the limitations of Title VII was
explicitly criticized in Great American Federal Savings & Loan Ass’n v. Novotny, 442 U.S. 366,
375-76, 99 S.Ct. 2345, 2350-51, 60 L.Ed.2d 957 (1979).

                                              3
liable if they acted in concert. Every group of men that makes vulgar comments

to women could be taken to federal court.16

      This federal usurpation of state sovereignty implicates the core

constitutional idea of federalism. Under our constitutional system, the federal

government is a government of limited powers, and all powers not given to the

federal government are reserved to the states. See U.S. Const. amend. X.

Federalism requires that any law enacted by the federal government must be

grounded in a specific grant of power under the Constitution.

      It is clear that section 1985(3) was enacted, at least in part, under Congress’

authority to eliminate the “badges and incidents” of slavery pursuant to section

2 of the Thirteenth Amendment. See U.S. Const. amend. XIII, § 2; Griffin, 403

U.S. at 104-05, 91 S.Ct. at 1799; see also Jones v. Alfred H. Mayer Co., 392 U.S.

409, 437-44, 88 S.Ct. 2186, 2202-05, 20 L.Ed.2d 1189 (1968) (describing

Congress’ Thirteenth Amendment powers). Congress’ authority under the

Thirteenth Amendment is limited, however, to the prevention of discrimination




       16
          The underlying torts in these three examples are, respectively, wrongful termination,
battery, and intentional infliction of emotional distress.

                                               4
on the basis of race. Thus, if we are to interpret section 1985(3) as preventing

sex discrimination, we must find some other constitutional grounding.

      One possibility is to base 1985(3) on Congress’ power under section 5 of

the Fourteenth Amendment to enforce that amendment’s guarantee of equal

protection.17 See U.S. Const. amend. XIV, §§ 1, 5. The Equal Protection Clause,

however, is a guarantee of protection against unjust state action; it does not reach

the conduct of private individuals. Section 1985(3), under a broad reading of the

majority’s holding, would reach all individuals regardless of whether they are

private or public actors. Thus, section 1985(3), read broadly, cannot be grounded

in Congress’ power under section 5 of the Fourteenth Amendment.18

      The other usual suspect for legislation of this sort is the Commerce Clause.

See U.S. Const. art. I, § 8. There are, however, at least four good reasons why

section 1985(3) cannot be grounded in Congress’ power to regulate interstate


       17
          In Griffin, the Supreme Court explicitly avoided the question of whether section
1985(3) was within Congress’ power under section 5 of the Fourteenth Amendment. See
Griffin, 403 U.S. at 107, 91 S.Ct. at 1801.
       18
          The only way in which section 1985(3), read broadly, could be understood as being
based on Congress’ section 5 powers is if Congress had concluded that state deprivations of
equal protection were so rampant that, as an extreme prophylactic measure, it needed to pass a
statute sweeping broadly enough to reach private individuals involved in any tortious behavior.
The majority makes no showing – and I seriously doubt that it could make a showing – that this
was the case.

                                               5
commerce. First, there is nothing in the legislative history of section 1985(3) to

suggest that Congress was acting pursuant to that power. Second, there is

nothing in the statute itself that ties it to the Commerce Clause – it does not, for

instance, create a cause of action for only those conspiracies that affect interstate

commerce. Third, it is hard to imagine how private tortious behavior of the sort

that section 1985(3) prohibits (under a broad reading of the majority’s holding)

could – at least in most cases – reasonably be said to involve “Commerce . . .

among the several States.” U.S. Const. art. I, § 8; see also United States v.

Lopez, 514 U.S. 549, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995). Finally, the

Supreme Court has already unequivocally stated that section 1985(3) is not

grounded in the Commerce Clause. See United Brotherhood of Carpenters and

Joiners of Am. v. Scott, 463 U.S. 825, 833, 103 S.Ct. 3352, 3358, 77 L.Ed.2d

1049 (1983).

      No other constitutional provisions appear to be colorable candidates. Thus,

I am forced to conclude that Congress does not have the authority to create a

remedy for all persons harmed by conspiratorial tortious conduct arising from




                                         6
sex-based animus.19 Consequently, section 1985(3), insofar as it is interpreted

to create such a remedy, is unconstitutional.



                                               II.

      The majority’s holding may be read more narrowly to mean that section

1985(3), at least when applied to cases involving sex-based discriminatory

animus, covers only those conspiracies in which the conspirators are state actors.

Such a reading of the statute brings it within Congress’ Fourteenth Amendment

powers and thus avoids the constitutional problems outlined in the previous

section. However, it also reads a state action requirement into section 1985(3),

thereby contravening nearly every imaginable canon of statutory interpretation.20

      The plain language of the statute says absolutely nothing about a state

action requirement.21 The statute does not use the terms “state actors,” “persons


       19
          As the majority points out, see ante at ___, a number of other circuits have interpreted
section 1985(3) as providing a remedy in federal court for conspiracies arising out of a sex-based
animus. None of these circuits, however, has explained whence Congress derives the authority
to create such a remedy.
       20
          Indeed, such a reading of section 1985(3) would be so far removed from true statutory
interpretation as to be nothing more than pure judicial activism, and consequently a violation of
the constitutional doctrine of separation of powers.
       21
         Of course, the plain language of the statute also says nothing about discriminatory
animus; nevertheless, the Supreme Court has read a discriminatory animus requirement into the

                                                7
acting under color of state law,” or any other language that would suggest that

section 1985(3) applies only to agents of the state. Instead, the statute applies to

conspiracies involving “persons,” without qualification.22                        Turning to the

legislative history, the statements of various representatives and senators

regarding the enactment of section 1985(3) clearly indicate that the statute’s

reach was in no way intended to be limited to state action – on the contrary, their

statements make clear that they deliberately chose to target “individuals”

(regardless of governmental affiliation) in contrast to states. See Griffin, 403

U.S. at 99-101, 91 S.Ct. at 1797-98.




statute. See Griffin, 403 U.S. at 102, 91 S.Ct. at 1798 (holding that proof of a violation of
section 1985(3) requires a showing of “racial, or perhaps otherwise class-based, invidiously
discriminatory animus behind the conspirators’ action”). This limitation on section 1985(3) –
like the state action limitation that the majority suggests – was based on a need to keep the
statute within Congress’ constitutional authority. See id. at 101-02, 91 S.Ct. at 1798. The
discriminatory animus requirement, however, was well grounded in section 1985(3)’s legislative
history. In contrast, as I will discuss in this section, the majority’s state action requirement is in
direct conflict with the statute’s legislative history and the dictates of the Supreme Court.
       22
           The statutory language argument is made even more powerful when § 1985(3) is
viewed in its original context. Section 1985(3) was enacted as § 2 of the Civil Rights Act of
1871, 17 Stat. 13. Section 1 of that Act – now codified as 42 U.S.C. § 1983 – explicitly requires
that the alleged deprivation of constitutional rights be “under color of state law.” Not only does
this indicate that Congress was perfectly capable of including a state action requirement if it so
desired, but it also suggests a statutory scheme in which § 1 (now § 1983) was aimed at state
action while § 2 (now § 1985(3)) was aimed primarily at private conduct. Under such a scheme,
reading a state action requirement into section 1985(3) would radically undermine congressional
intent.

                                                  8
       Most importantly, the Supreme Court precedent interpreting section

1985(3) unequivocally forecloses any attempt to read a state action requirement

into the statute. In the words of that Court, “all indicators – text, companion provisions,

and legislative history – point unwaveringly to § 1985(3)’s coverage of private conspiracies.”

Griffin, 403 U.S. at 101, 91 S.Ct. at 1798;   see also Scott, 463 U.S. at 834, 103 S.Ct. at

3359 (“[T]he Griffin opinion emphatically declared that [section 1985(3)] was

intended to reach private conspiracies that in no way involved the state.”). It

would be hard to imagine a more unequivocal statement that a plaintiff alleging

a violation of section 1985(3) need not allege state action.23

       In sum, imposing a state action requirement on section 1985(3) is absurd.24

It is abundantly clear that the presence or absence of state action is completely

irrelevant to the existence of a claim under section 1985(3). It may be true that

Congress has the power, pursuant to section 5 of the Fourteenth Amendment, to

pass a statute providing a remedy for women injured as a result of a conspiracy


        23
          The majority opinion is notably bereft of precedent for the proposition that state action
has any relevance in a section 1985(3) claim – because, at least after Griffin, there is no such
precedent to be found.
        24
          I also note the patent inconsistency of reading a single statute as requiring state action
in one situation (sex discrimination) but not another (race discrimination). Such a reading in
essence converts section 1985(3) into two statutes – one for race-based animus that applies to all
persons, and one for sex-based animus that applies only to state actors.

                                                  9
to commit a tort arising out of sex-based animus where the conspirators are state

actors. Section 1985(3) is not that statute. Therefore, the fact that the defendants

in this case are state actors provides no basis for a section 1985(3) claim by the

plaintiff.25



                                              III.

       The majority says that it will “leave for another day and case the issue of

whether [section 1985(3)] may be applied constitutionally to other sex-based

animus conspiracies [besides those involving state actors].” Ante at ___. The

majority fails to consider what will happen on that day and in that case. A

plaintiff complaining of sex discrimination will bring a section 1985(3) suit

against private persons; the court will be forced to decide whether the plaintiff

has stated a claim. If the court determines that the plaintiff has a claim, then it

       25
           The majority steadfastly resists the idea that it might be reading a state action
requirement into section 1985(3). See ante at ___ n.2. This resistance results from a failure by
the majority to consider the consequences of its reasoning. The majority’s reasoning seems to
operate as follows: Section 1985(3) applies to all conspiracies motivated by sex-based animus;
this may be unconstitutional as applied to private conspiracies, but the defendants lack standing
to challenge the statute on that ground because they are state actors. Private defendants would of
course have standing to raise such a challenge; if that challenge were successful, we would have
created a scheme in which section 1985(3) could be used against state actors but not against
private conspirators. I cannot see the difference between creating such a scheme and imposing a
state action requirement on section 1985(3). The fact that the majority creates only half of the
scheme today does not alter the nature of the scheme it is creating.

                                               10
ignores the Constitution by sustaining a remedy that Congress did not have the

power to create. If the court determines that the plaintiff does not have a claim

because the defendants are not state actors, then that holding – combined with the

holding in this case – imposes a state action requirement on section 1985(3), in

blatant violation of statutory language, legislative history, and Supreme Court

precedent. There are no other options.

      The majority boxes us into this corner by trying to decide this case without

defining the scope of section 1985(3).         Section 1985(3) clearly covers

conspiracies (involving either private or public actors) motivated by race-based

animus. I leave open – as the Supreme Court has consistently done – the

possibility that some form of animus other than race-based animus may be

covered by the statute. See Bray, 506 U.S. at 268-69, 113 S.Ct. at 759; Scott,

463 U.S. at 836-37, 103 S.Ct. at 3360; Griffin, 403 U.S. at 102 n.9, 91 S.Ct. at

1798 n.9. I cannot, however, discern any reasoning that is true to both the statute

and the Constitution under which I may hold that section 1985(3) covers

conspiracies motivated by sex-based animus. I am therefore persuaded that the

plaintiff in this case does not have a prima facie case under section 1985(3).



                                        11
Insofar as the majority holds that she does, I dissent. As for the remaining

portions of the majority opinion (Parts I and III), I wholeheartedly concur.




                                       12
ANDERSON, Circuit Judge, concurring in part and dissenting in part:

      I concur in all of Judge Carnes’ opinion for the court, except Part III.E. In

applying the new test for determining whether two state or local governmental entities

will be treated as a “single employer” under Title VII, I agree with Judge Kravitch (and

for the reasons she articulates) that there remain genuine issues of material fact, thus

making summary judgment inappropriate.
 Edmondson, Circuit Judge, concurring in part and dissenting
 in part, in which COX, BIRCH and DUBINA, Circuit Judges,
 join:


          The Civil War came close to destroying the United States

 forever. The War was a brutal physical contest, in which valor

 was common on both sides. Our great nation was preserved,

 but at a terrible price. For example, in the four years of the

 War, the federal army of about 1,500,000 troops suffered

 634,703 casualties (359,528 dead and 275,175 wounded).26 The

 War       also   cost   the   federal   government,     at   least,

 $15,000,000,000. I doubt that we can today appreciate the

 depth of feeling about sacrifice and about loss (tinged with

 bitterness) that loomed over the country and Congress in the

 decade following the War.

          One issue over which the War had been fought was

 slavery. The fate of slaves, recently freed at such severe cost


      By way of comparison, a much more populous United States,
     26


with a much larger military, fighting worldwide, suffered a loss of
292,131 dead in World War II.
to the Union, was a great concern during the Reconstruction

era. Radical Reconstruction was rough for southern whites.

Some strongly resented the political influence of freed slaves

and of those persons working with freed slaves. There was

resistance, and organizations such as the Ku Klux Klan arose

in the South.    These organizations engaged in terroristic

conduct. This conduct was aimed at intimidating the freed

slaves and their white allies. The allies were often former

union soldiers and mostly Republicans. These hard realities

made up the situation Congress (dominated by northern

Republicans) faced in 1871 when it enacted the Ku Klux Klan

Act, including what is now 42 U.S.C. § 1985(3).

    Our job in construing a statute is to determine

congressional intent. In my view, 42 U.S.C. § 1985(3) is the

product of this concrete historical situation.     The statute

speaks to the concerns of the situation. The text of the statute

must be interpreted in the context of this history.       Most

                               2
 important, it is the qualities of the text when it was written --

 and not our response to it as modern readers -- that must be

 our guide. In addition, what we personally might like this

 statute to mean (or the law, in general, to be) in the light of

 current circumstances and changed ideas has no rightful place

 in our work: reinvention of the statute cannot properly be what

 we are after.

          The question today is whether 42 U.S.C. § 1985(3) extends

 to cover persons conspired against because of their sex.27

 Sexual discrimination was no issue in the Civil War or in

 Reconstruction.28 And looking at the circumstances existing


     27
       This case concerns the scope of the cause of action made
available by section 1985(3) to those injured by conspiracies formed
“for the purpose of depriving, either directly or indirectly, any
person or class of persons of the equal protection of the laws, or of
equal privileges and immunities under the laws.”
     28
       Plaintiff is a white woman. At its core, the section was
intended to protect blacks and those who supported blacks; thus,
white women, along with everyone else, are doubtlessly protected by
the statute as long as they are being conspired against on account of
helping a racial group. The question presented in this case then is
                                   3
 in 1871, I am unpersuaded that sexual discrimination was in

 the mind of Congress when section 1985(3) was passed. The

 language of the pertinent statute is pretty broad. But the

 Supreme Court has already indicated -- in 1983 -- that neither

 the language of section 1985(3) nor its legislative history

 readily answers questions about the section’s scope. Despite

 the statute’s language, “it is a close question whether section

 1985(3) was intended to reach any class-based animus other

 than animus against Negroes and those who championed their

 cause, most notably Republicans.” United Bhd. of Carpenters

 & Joiners v. Scott, 103 S. Ct. 3352, 3360 (1983) (construing

 “intent of the 1871 Congress” and holding that section does

 not reach conspirators motivated by bias against a group on

 account of their economic views).29


not whether women are protected by the statute (they are), but
whether the statute extends protection to women (or to anyone else)
in this kind of case.
     29
          The Supreme Court in Scott was unpersuaded by a “plain-
                                    4
          Since 1983, no new information has come to light that

 would make this court better informed about the intent of the

 1871 Congress than the Supreme Court was informed in 1983.30


language” argument that conspiracies not based on race are
included in 1985(3). So am I.
      The plain-language doctrine of statutory interpretation is
usually best to determine the true intention of Congress, but judges
usually are looking at statutes enacted by -- at least roughly
speaking -- their own contemporaries. As contemporaries, we share
with the pertinent Congress basically the same environment of
circumstances and facts that surrounded the enactment of the
statute; and when we see in the statute’s words an unambiguous
plain meaning, we see that plain meaning in the light of our shared
contemporary conditions. But as I have observed, “[w]hen . . . much
older statutes are being construed by modern courts, our response
as modern readers to the words of the statute may not be what the
words meant to the Congress speaking at a very different time.”
United States v. Steele, 147 F.3d 1316, 1320-21 (11th Cir. 1998) (en
banc) (Edmondson, J., concurring).
      When we are looking at a statute that is almost 130 years-old,
we know that, in the meantime, conditions and ideas have changed;
the passage of time is enough to inject considerable uncertainty in
my mind about the meaning of what the 1871 Congress said with the
statute. Just reading the words today is not enough to know what
the words used in 1871 meant to that Congress. Congress’s intent at
the time of the statute’s enactment cannot be reliably ascertained
without taking into account the historical context of the statute.
      I do not say that the Supreme Court’s words in Scott can be
     30


read as a holding which is binding on us, but the Court’s words have
                                  5
consequence. Furthermore, I agree with the Supreme Court. The
arguments made to support a construction of 1985(3) to extend
beyond race are not compelling.
      Some argue that the section’s protections track the protections
of the Equal Protection Clause of the Fourteenth Amendment,
which the Supreme Court has construed to go beyond race. But,
section 1985(3) does not actually say (although it could have done so
à la 42 U.S.C. § 1983) that it incorporates the Fourteenth
Amendment or the Constitution. And the Fourteenth Amendment
was enacted by a different Congress (the 39th) than the Congress
(the 42d) that enacted section 1985(3): words can mean different
things to different Congresses. In addition, the Supreme Court has
already said that “Equal Protection Clause jurisprudence is [not]
automatically incorporated into § 1985(3).” Bray v. Alexandria
Women’s Health Clinic, 113 S. Ct. 753, 761 n.4 (1993). Even if one
accepts that the Congress in 1871 intended the words in section
1985(3) to mean the same thing as the Equal Protection Clause, it
would seem that the intention would be that the section’s words
mean the same thing as the Equal Protection Clause’s words were
understood to mean in 1871, which may well be different than what
we understand the Clause to mean today. Furthermore, section
1985(3) was enacted -- at least in substantial part -- on the basis of
the Thirteenth Amendment, which deals directly with the badges
and incidents of “slavery.”
      Others point out bits of legislative history that they say show a
broader intent. The legislative history -- which is filled with
references to freed slaves and their supporters and to the Klan -- is
long. The bits that might be said to point beyond race are very few
and short. And, the statements of individual legislators are not
ordinarily given controlling effect. See, e.g., Brock v. Pierce County,
106 S. Ct. 1834, 1840-41 (1986).
      Some others say that, even if it is true that the 1871 Congress
                                    6
did not have in mind discrimination against persons other than
black people when Congress enacted section 1985(3), it is proper to
extend the statute to cover reasonably comparable evils. They cite
Oncale v. Sundowner Offshore Services, Inc., 118 S. Ct. 998 (1998).
Oncale decided that a statute that undoubtedly was enacted to
prohibit sexual discrimination reaches all kinds of sexual
discrimination, including male-on-male discrimination. I say the
Oncale reasoning would allow section 1985(3) to reach all kinds of
racial discrimination and not just discrimination against black
persons, although former slaves were precisely who Congress had in
mind. But Oncale’s reasoning does not license federal courts to start
including a whole new category of discrimination within a statute’s
coverage if Congress did not have that kind of discrimination in
mind at all.
      Never has the Supreme Court decided whether section 1985(3)
extends beyond race to sex. Therefore, stare decisis and similar
doctrines -- which require courts to stand by previously decided
matters -- can dictate nothing to us. Still, some people take what
they might call a realist view, observing that several of the present
members of the Supreme Court have individually said -- at one time
or another -- that 1985(3) does cover conspiracies other than those
based on race. These “realists” see the handwriting on the wall.
They predict the Supreme Court ultimately will extend the statute to
conspiracies based on sex and say, therefore, that lower courts
should take the step now. I think that predicting what the Supreme
Court will do in the future is hard. Justices are not bound by their
statements in concurrences or dissents or in decisions while serving
on lower courts. More important, our judicial duty, as I understand
our promises, is to study section 1985(3) using the usual legal
methods and to decide the case accordingly and independently. The
job of a United States Circuit Judge is not just to bet on which way
the Supreme Court will come down later. I think the nonbinding
                                   7
 The legislative-history equivalent of the Dead Sea Scrolls has

 not been discovered or called to our attention. When we are

 construing statutes and, therefore, congressional intent, we

 must never allow guessing to masquerade as interpretation.

 Also we, as judges, must always know what we do not know.

 In my view, we cannot know with reasonable certainty that the

 1871 Congress intended to reach conspiracies other than

 those based on race.

          To extend section 1985(3) to cover persons conspired

 against because of their sex would represent an important

 decision on public policy. This kind of public-policy decision

 is beyond our legitimate power when the congressional intent

 is so unclear. An ancient legal maxim says that “where you

 doubt, do nothing.”31 I think we should do nothing here. We


observations of individual Supreme Court justices are not so much
to be counted by us, as they are to be weighed.
      Quod dubitas, ne feceris. S.S. Peloubet, Legal Maxims 253
     31


(1985); Black’s Law Dictionary, 1127 (5th Ed. 1979).
                                  8
should not err on the side of an innovative expansion of an old

statute.   To do so is not just a mistake of principle, it is

dangerous. “The federal balance is a fragile one, and a false

step in interpreting § 1985(3) risks making a whole catalog of

ordinary state crimes a concurrent violation of a single

congressional statute passed more than a century ago.” Bray

v. Alexandria Women’s Health Clinic, 113 S. Ct. 753, 768 (1993)

(Kennedy, J., concurring).

     I believe that we do our duty when we admit that we do not

know whether certain conduct was intended by Congress to be

covered by a statute or not. We cannot properly do more in

this case.    I accept the principle that Congress and the

President -- political officers elected by the American people --

should decide public policy questions, such as the one

underlying this case. The political branches (and not the

judicial branch) should decide whether a federal statute --

along the lines of 42 U.S.C. § 1985(3): that is, a statute directed

                                 9
 largely towards private conduct and without expressed limits

 tied to state action, interstate commerce, federal funding and

 so on -- is fitting and needed to cover persons conspired

 against on account of their sex.32

          When I disagree with the court, I commonly file no dissent.

 Dissenting is rarely the best use of the judge’s time and

 energy. Dissents can also be counterproductive in other ways.

 If the legal principles involved seem to me to be important

 enough, I may write something, however. Even then, because

 my dissent will govern no one (not even me) while the court’s

 opinion will govern everyone in three states, I sincerely hope

 that the court’s view of the case is the correct one -- setting out

 the true law -- and that my view is the incorrect view. I know


     32
       By the way, although the Supreme Court signaled in 1983 that
it was by no means clear that section 1985(3) reached beyond race,
Congress in 1991 -- when it amended many civil rights statutes -- did
not expand the section to make it plain that nowadays the section’s
coverage ought to go beyond race. But Congress has enacted other
statutes that prohibit discrimination on the basis of sex in a number
of specific contexts.
                                    10
that my colleagues’ motives are good. But for the reasons I

have tried to explain briefly, I cannot today go along

completely.

    I concur in this court’s opinion and judgment, except the

part about 42 U.S.C. § 1985(3).




                              11
HULL, Circuit Judge, concurring specially:

      I concur in all of the majority opinion including the entire section addressing

the § 1985(3) issue. I write separately only to emphasize my view that, on the

§1985(3) issue, we do not write on a clean slate. It is true, as the dissents point out,

that the Supreme Court’s decisions in Griffin v. Breckenridge, 403 U.S. 88 (1971),

United Brotherhood of Carpenters and Joiners of America v. Scott, 463 U.S. 825

(1983), and Bray v. Alexandria Women’s Health Clinic, 506 U.S. 263 (1993) do not

expressly hold that § 1985(3) protects against conspiracies motivated by a gender-

based animus. However, the Supreme Court has strongly indicated that the broad

language of § 1985(3) prohibits gender-based conspiracies. In my view, the Supreme

Court’s direction on this issue is unmistakable to the point that no principled way

exists for this Court to hold, as suggested by the dissents, that § 1985(3) prohibits

only conspiracies motivated by racial animus.

      In Griffin, the Supreme Court recited its interpretation of the broad language

in § 1985(3). The Court held that to prove a § 1985(3) violation, a plaintiff must

show “some racial, or perhaps otherwise class-based, invidiously discriminatory

animus” behind the conspirators’ actions. Griffin, 403 U.S. at 102. In Griffin, the

Court expressly reserved the question of whether § 1985(3) applied to conspiracies

motivated by invidious intent other than race. Griffin, 403 U.S. at 102 n.9.

Nonetheless, as the majority in this case cogently observes, for the Court’s language
“otherwise class-based, invidiously discriminatory animus” to have any meaning,

“otherwise class-based . . . animus” must include animus directed against women –

or men for that matter.

      Quite to the contrary of the inferences drawn by the dissents, in my view,

Griffin, Scott, and Bray, provide strong guidance that the Supreme Court views §

1985(3) as encompassing gender-based conspiracies. Each of these cases presented

the Court with the opportunity to limit the reach of §1985(3) to only conspiracies

motivated by racial animus. That the Court declined all three of these opportunities

speaks loudly.

      Griffin involved a racial conspiracy. As a race case, Griffin presented the

perfect opportunity for the Court to suggest that § 1985(3) was intended solely to

protect African Americans. Indeed, Griffin did not require the Court to discuss the

scope of § 1985(3) beyond holding that it prohibited conspiracies motivated by a

racial animus. Nevertheless, the Court made its pronouncement that § 1985(3)

required a showing of “some racial, or perhaps otherwise classbased, invidiously

discriminatory animus.” Griffin, 403 U.S. at 102. The Court’s reasoning behind this

statement is apparent. Obviously, § 1985(3) was intended, first and foremost, to

address the plight of African Americans during Reconstruction, but the language used




                                         2
in the statute suggests that it encompasses a broader range of conspiracies – thus, the

phrase “otherwise class-based, invidiously discriminatory animus.”

      Likewise, in Scott, the Supreme Court declined again to interpret § 1985(3) as

prohibiting only race-based conspiracies. As noted by the majority in the instant

case, the Court in Scott held that § 1985(3) does not prohibit “conspiracies motivated

by economic or commercial animus.” 463 U.S. at 836. In doing so, the Court recited

legislative history supporting the notion that “[t]he predominate purpose of § 1985(3)

was to combat the prevalent animus against Negroes and their supporters.” Id.

Despite the Court’s emphasis of this legislative history, the Court declined the

opportunity to limit the applicability of § 1985(3) to race-based conspiracies.

      Moreover, Bray presents the clearest illustration of the Supreme Court’s

implicit recognition that § 1985(3) prohibits conspiracies motivated by a gender-

based animus.     In Bray, the Court addressed the issue of whether opposition to

abortion constitutes “class based, invidiously discriminatory animus.” 506 U.S. at

269. The district court in Bray had concluded that such a conspiracy amounted to

discrimination against the “‘class’ of women seeking abortions,” and the plaintiffs

argued that opposition to abortion included an animus against “women in general.”

Id. Obviously, the Court’s easiest and most direct path to reversing the district court,

and rejecting the plaintiffs’ argument, would have been to hold simply that § 1985(3)


                                           3
 does not prohibit gender-based conspiracies. However, the Court did not follow this

 path.33 Instead, Justice Scalia’s majority opinion undertook a protracted, detailed

 analysis to reject the conclusion that opposition to abortion equates with

 discrimination against women. The Court’s opinion in Bray reflects the unavoidable

 facts that (1) § 1985(3)’s broad language does not itself suggest that it is limited only

 to race-based conspiracies and (2) the Supreme Court’s statement in Griffin that §

 1985(3) requires proof of a “class-based animus” recognizes the broad sweep of the

 protection afforded by § 1985(3).

            In the instant case, the dissents do not sufficiently heed the Supreme Court’s

 guidance on this issue. One dissent admonishes that “[t]he job of a United States

 Circuit Judge is not just to bet on which way the Supreme Court will come down

 later.” Similarly, the other dissent describes this issue simply as “open.”

            In my view, interpreting Griffin, Scott, and Bray as providing strong guidance

 on this issue does not involve betting “on which way the Supreme Court will come

 down later,” nor is this issue simply “open.” Instead, the majority’s conclusion that

 gender is a class protected under § 1985(3) is the only holding that follows in a

 principled way the Court’s statement in Griffin and its reaffirmation of this statement



       33
            Importantly, in none of the five separate opinions in Bray did any of the Justices
opine that gender-based conspiracies were beyond the reach of § 1985(3).

                                                  4
in Scott and Bray. The lack of a direct holding leaves this Court at best “wiggle

room” to write around the Court’s statement in Griffin. However, Griffin, Scott, and

Bray, in my opinion, direct us to the path to follow in § 1985(3) cases, and stare

decisis dictates that we should follow it – until the Supreme Court tells us otherwise.

In this regard, I note Justice Souter’s observation in his opinion in Bray that “I know

of no reason that would exempt us from the counsel of stare decisis in adhering to

this settled statutory construction . . . which Congress is free to change if it should

think our prior reading unsound.” 506 U.S. at 289 (Souter J., concurring in part and

dissenting in part).

       Griffin, Scott, and Bray have guided seven circuits to conclude that § 1985(3)

embraces suits premised on gender-based conspiracies. Likewise, this Supreme

Court precedent is why four Supreme Court Justices have stated recently their views

that § 1985(3) encompasses gender-based conspiracies. Bray, 506 U.S. at 295

(Souter, J., concurring in part and dissenting in part) (“To be sure, there is some

resonance between Griffin’s animus requirement and those constitutional equal

protection cases that deal with classifications calling for strict or heightened scrutiny

. . . [such as] race, national origin, alienage, gender, or illegitimacy.”); Bray, 506 U.S.

at 319 (Stevens, J., dissenting) (“The text of the statute provides no basis for

excluding from its coverage any cognizable class of persons who are entitled to the


                                            5
equal protection of the laws.”); Bray, 506 U.S. at 348 (O’Conner J., dissenting) (“I

would . . . find in today’s case that §1985(3) reaches conspiracies targeted at a

gender-based class . . . .”); Great American Federal Savings and Loan Assn. v.

Novotny, 442 U.S. 366, 389 n.6 (1979)(White, J., dissenting) (“It is clear that sex

discrimination may be sufficiently invidious to come within the prohibition of

§1985(3).”). I agree with the majority that we are required to join the seven circuits,

and the four Justices, to conclude that § 1985(3) prohibits gender-based

discrimination.

      Finally, I am sensitive to the sound policy arguments raised in Judge Tjoflat’s

dissent. Nevertheless, the Supreme Court has offered clear guidance on this issue,

and I do not believe that the Supreme Court’s pronouncements can be avoided in any

principled way.

      For these reasons as well as those articulated in the majority’s opinion, I

concur.




                                          6
Kravitch, Senior Circuit Judge, concurring in part and dissenting in part:

        I concur in Part I of the majority opinion, which reinstates that portion of the

panel opinion remanding the case to the district court for reconsideration of the

section 1983 claim because Lyes’s pleadings were sufficient to provide the district

court and the appellees with notice that she alleged a violation of the Equal Protection

Clause of the Fourteenth Amendment. I also concur in Part II of the majority

opinion, in which this court joins every other circuit that directly has decided the

issue in holding that 42 U.S.C. § 1985(3) prohibits sex-based conspiracies, at least

where the conspirators are acting under color of state law. With respect to Part III,

however, I dissent in part.

                      I. The New Public Single Employer Test

        In Part III, the majority formulates a new test for determining whether two

ostensibly independent state or local government entities should be considered a

“single employer” for Title VII purposes. It then finds that the district court properly

granted summary judgment in favor of the appellees on Lyes’s Title VII claim

because Lyes did not produce evidence sufficient for a reasonable factfinder to

conclude that the City of Riviera Beach Community Redevelopment Agency (the

“CRA”) and the City should be aggregated under this new public single employer

test.
            Before articulating the new standard for deciding whether governmental

 entities should be consolidated under Title VII, the majority considers but rejects the

 four-factor test that the National Labor Relations Board (“NLRB”) applies to decide

 whether to aggregate ostensibly separate private employers.34 I would have preferred

 that this court adopt the NLRB test regardless of whether the entities in question are

 public or private. Although the NLRB originally adopted this four-factor test in the

 context of deciding which private employers it would subject to its jurisdiction in

 labor relations disputes, see Radio & Television Broad. Technicians Local Union

 1264 v. Broadcast Serv. of Mobile, Inc., 380 U.S. 255, 256, 85 S. Ct. 876, 877

 (1965), in McKenzie v. Davenport-Harris Funeral Home, 834 F.2d 930 (11th Cir.

 1987), we joined the majority of circuits in applying this test in the Title VII context

 in cases involving private entities.35 For the reasons described below, I would have

 extended the application of the NLRB test to Title VII suits against government

 employers, as well.

       34
           These four factors are (1) interrelation of operations; (2) centralized control of labor
relations; (3) common management; and (4) common ownership or financial control. See, e.g.,
Radio & Television Broad. Technicians Local Union 1264 v. Broadcast Serv. of Mobile, Inc.,
380 U.S. 255, 256, 85 S. Ct. 876, 877 (1965).
       35
           The Second, Fifth, Sixth, Eighth, Ninth, and Eleventh Circuits all employ the NLRB
test to determine whether private entities should be aggregated for Title VII purposes. See
Majority Op. at ___. The Tenth Circuit “ha[s] yet to adopt the [NLRB] single employer test,
having found it unnecessary in several cases to resolve the issue definitively,” but it has not
rejected the test. Lockard v. Pizza Hut, Inc., Nos. 97-7027, 97-7078, 1998 WL 863978, at *5
(10th Cir. Dec. 14, 1998). The remaining circuits apparently have not addressed this issue.

                                                   2
            As the majority recognizes, the Supreme Court specifically has held that Title

 VII principles and standards apply with equal force to private and public employers.

 See Majority Op. at ___. Federal courts have been using the NLRB test in Title VII

 cases involving private entities for more than 20 years,36 and therefore have

 developed continuity and expertise in applying it. Creating a different test for

 deciding whether to consolidate public employers, who must abide by the same Title

 VII rules as private employers, requires the courts to start again, evolving and

 shaping a new standard. Given the flexibility of the existing single employer test,

 this approach is unnecessary. The NLRB test is not a strict formula, but instead

 embodies factors commonly recognized to characterize coordinated enterprises. It

 acknowledges that no two operations are exactly alike; therefore, as the majority

 points out, “[c]ourts applying the NLRB ‘single employer’ test to private entities in

 Title VII cases have held that not every factor need be present, and no single factor

 is controlling.”      Majority Op. at ___ n.4 (citing three cases recognizing this

 proposition).

            A number of courts already have demonstrated that the NLRB test can be

 applied to government employers with little difficulty. See Riley v. County of Pike,


       36
         The Eighth Circuit was the first court to use this test to decide whether two employers
should be aggregated under Title VII. Baker v. Stuart Broadcasting Co., 560 F.2d 389 (8th Cir.
1977).

                                                 3
 761 F. Supp. 74, 76-77 (N.D. Ind. 1989) (holding, in age discrimination case under

 ADEA, that “same considerations are pertinent” when deciding single employer issue

 for public entities as for private entities and applying NLRB test to resolve the

 question; noting that where government entities are concerned, court also must keep

 constitutional separation of powers issues in mind); Vandermeer v. Douglas County,

 15 F. Supp. 2d 970, 975-79 (D. Nev. 1998) (conducting extensive analysis, using

 NLRB four-factor test, to decide whether Fire and Paramedic Districts and County

 should be aggregated for Title VII purposes; noting that fact that state might consider

 the entities to be separate was relevant but not controlling). In my view, all of these

 advantages outweigh the slight awkwardness created in the public employer context

 by the labeling of the fourth factor of the NLRB test—common ownership or

 financial control—which admittedly is more helpful in our analysis of the

 relationship between parent and subsidiary corporations than governmental bodies.37



       37
          This minor obstacle, however, has not hindered district courts that have employed this
test where aggregation of government entities was at issue. For example, in Vandermeer, the
court applied this element of the test by considering sub-factors such as ability to raise revenue,
division of funds, independence of property ownership, separation of accounting records, and
payment of bills and debts. 15 F. Supp. 2d at 978. This approach is not unlike that taken by the
panel in this case, which, in analyzing the fourth factor, recognized the extensive intermingling
of CRA and City funds, including the facts that the CRA received two-thirds of its budget, and,
on one occasion, an interest-free loan, from the City. See Lyes v. City of Riviera Beach, 126
F.3d 1380, 1387 (1997), opinion vacated and reh’g en banc granted, 136 F.3d 1295 (11th Cir.
1998).


                                                   4
      The majority also contends that the third factor of the NLRB single employer

test—common management—is an inappropriate consideration in the government

entity aggregation context. I disagree. The majority explains its rejection of the third

factor by stating that “[w]hile [the common management factor] may be an

appropriate yardstick in some instances, in others two public entities may share

managers or other employees while remaining politically separate and distinct.”

Majority Op. at ___. This reasoning is circular: the fact that the sharing of personnel

may not justify, in some situations, aggregation under Title VII does not mean that

courts should simply ignore the common management factor in every case. Again,

under the NLRB test, no one factor controls the outcome of the “single employer”

analysis in a given case.

      Upon rejecting the NLRB test as an inappropriate standard for deciding when

government entities should be aggregated for Title VII purposes, the majority

formulates a new test for making this determination. In large part, this test mirrors

the NLRB standard. After holding that comity and federalism considerations require

us to defer to Florida’s delineation between the CRA and the City in this and other

cases in which a state has designated the relevant political bodies as separate




                                           5
 entities,38 the majority recognizes that courts still may find that purportedly

 independent government bodies should be considered a single employer under Title

 VII. A plaintiff can show that aggregation of public entities is appropriate either by

 proving that the state created the “separate” units to evade federal law or by

 demonstrating “other factors” “plainly indicat[ing] integration” of the entities.

 Majority Op. at ___.

            In deciding what factors courts should assess under this new public single

 employer test, the majority looks to “the factors courts have considered in Title VII

 cases involving private employers”—primarily the NLRB factors. Majority Op. at

 ___. The majority focuses upon “centralized control of labor relations” (NLRB

 factor 2) as the dominant consideration of the public single employer test;39 it also

 cites “interrelation of operations” (NLRB factor 1) as an important component of this

 analysis. Id. The majority concludes by observing that the factors it mentions are not



       38
          The majority summarizes the first step in the new standard it promulgates as follows:
“we begin with the presumption that governmental subdivisions denominated as separate and
distinct under state law should not be aggregated for purposes of Title VII.” Majority Op. at ___
(emphasis added). This formulation echoes the concerns the majority repeatedly expresses
regarding the implications of federalism and comity where the state legislature has delineated
government entities as separate from one another. As I read the majority opinion, therefore, this
presumption only applies in a situation, such as the one before us in this case, in which the state
legislature created the entities in question as “independent legal bodies.” Majority Op. at ___.
       39
           Courts frequently have observed that under the NLRB test as applied in the Title VII
context, this factor should receive the most weight. See Barbara Lindemann & Paul Grossman,
Employment Discrimination Law 1310 (Paul W. Cane, et al., eds., 3d ed. 1996).

                                                  6
 exhaustive. Id. Thus, despite my preference for extending the NLRB test to govern

 the aggregation analysis for public as well as private employers, because the

 standard that the majority has developed significantly parallels the NLRB test, I do

 not dissent from its adoption.

                                   II. Applying the New Test

            Applying the majority’s public single employer analysis, and accepting the

 presumption that test creates that the CRA and the City should not be aggregated for

 Title VII purposes,40 I dissent from the majority’s conclusion that summary judgment

 was proper in this case. Looking first at the two NLRB factors still viable under the

 new test, the record shows that Lyes presented significant evidence that the City and

 CRA had interrelated operations and that the City controlled decisions regarding the

 CRA’s employees. As the panel opinion pointed out, the record contains several

 pieces of evidence from different sources indicating that the City treated the CRA

 merely as one of its departments. These items include the CRA bylaws, which, at

 least until one month before Lyes’s termination, obligated the CRA Executive

 Director to report to and coordinate the CRA agenda with the City Manager;41 a

 widely published advertisement for the City Manager position seeking applicants

       40
            See supra note 5 and accompanying text.
       41
         The parties introduced two different versions of the CRA bylaws. Lyes’s version
contained this language, but the appellees’ version, marked “Revised 11/17/93,” did not.

                                                 7
 with experience directing departments of a full service municipality and CRA; and

 a written performance review of Lyes by Tony Smith, the City Manager/CRA

 Executive Director, appearing on a City form and listing the CRA as a department of

 the City.42

            Multiple indicia of City control over CRA employment decisions also appear

 in the record. As mentioned above, Smith’s evaluation of Lyes’s performance on a

 City form and possibly in his capacity as City Manager,43 and the CRA bylaws’

 requirement that the CRA Executive Director report to the City Manager, raise

 questions about whether the CRA independently managed its staff during Lyes’s

 period of employment. Additionally, the Executive Director’s request that the City

 personnel director review his decision to discipline Lyes and the City attorney’s

 participation in the CRA Board’s hearing considering Lyes’s petition for


       42
          The majority finds this last piece of evidence to be of little or no significance given
Smith’s dual role at the time. In downplaying the importance of this incident, the majority
ignores the fact that Smith listed the CRA as a “department” of the City on the form, a detail
with broader implications in terms of the level of CRA/City integration than a simple error in
choosing the wrong sheet of paper to complete an evaluation. The majority also improperly
weighs this evidence: it is up to the factfinder—not this court—to decide the significance of
Smith’s commingling of Ciry and CRA activities. Although it is possible to infer from the
written performance review that Smith mistakenly picked up a City form, or perhaps that he had
run out of CRA stationery, and incorrectly listed “CRA” as a “department” without realizing the
potential consequences of that act, it is also quite plausible that Smith himself was confused
about the division of his duties as City Manager and Executive Director of the CRA. The latter
scenario strengthens Lyes’s argument that the City and CRA were one integrated organization
for Title VII purposes.
       43
            See supra note 9 and accompanying text.

                                                  8
 reinstatement could support Lyes’s position on the single employer issue.44 With

 respect to the majority’s observation that which entity had the obligation to pay the

 charging party’s salary could affect this analysis, the factfinder also could take into

 account the CRA’s budget, two-thirds of which the City supplies.

            Finally, the majority acknowledges that the public single employer test

 requires us to consider the totality of the circumstances. Although the NLRB

 common management factor is not an element of our analysis under this test, I see no

 reason for the court to ignore the reality of the situation presented in this case by

 refusing to acknowledge the identical composition of the respective policymaking

 bodies of these entities—the City Council and the CRA Board—and, for eighteen

 months, the role of Tony Smith as both City Manager and CRA Executive Director.

 The Florida statute’s designation of the CRA as a legal entity separate and

 independent from the City may have presumptive weight under our new public single


       44
           Again, the majority inappropriately weighs this evidence when it concludes that “there
was no indication that this review had any binding effect. Instead, it appears to have been an
effort to seek the opinion of a third party as to whether [the Executive Director] had acted fairly
in disciplining Lyes. In this sense, [it] was not unlike seeking advice from an expert in
employment relations.” Majority Op. at ___ (emphasis added). This reasoning is highly
speculative. No evidence regarding the impact of this review appears in the record, and
therefore its effect on the aggregation question is an issue for the factfinder. Nor does the record
indicate the reason the Executive Director asked for the review; thus, the purpose for which he
sought the personnel director’s opinion also was a matter for the factfinder to decide. There
simply is no basis in the record from which unequivocally to conclude that when the city
personnel director reviewed Lyes’s discipline, he provided nothing more than non-binding,
independent expert advice to the Executive Director.

                                                   9
employer test, but the fact that the state statute permits the City Council and the CRA

Board to have the same members does not exempt that arrangement from review. At

the very least, a factfinder should scrutinize this system to evaluate the degree to

which these officials were able to keep their two roles separate.

      Unquestionably, some information in the record points to the conclusion that

the City and the CRA were sufficiently distinct that we should not aggregate them for

purposes of Title VII. Because the majority opinion catalogs this evidence, see

Majority Op. at ___, I see no need to discuss it again here. Considering all of the

evidence—and all reasonable inferences that can be drawn from it—in the light most

favorable to Lyes, as we must for summary judgment purposes, however, a

reasonable factfinder could determine that Lyes clearly overcame the presumption

in favor of appellees on the single employer issue, thus making summary judgment

inappropriate. As to the majority’s conclusion to the contrary, I therefore respectfully

dissent.




                                          10
