                                                                  [PUBLISH]

                  IN THE UNITED STATES COURT OF APPEALS

                            FOR THE ELEVENTH CIRCUIT                           FILED
                             ________________________                    U.S. COURT OF
                                                                             APPEALS
                                                                       ELEVENTH CIRCUIT
                                    No. 00-12739                          MAY 18, 2001
                              ________________________                  THOMAS K. KAHN
                                                                              CLERK

                         D. C. Docket No. 97-01831-CV-AR-E

MARY L. HARRINGTON,

                                                                  Plaintiff-Appellant,

                                            versus

CLEBURNE COUNTY BOARD OF EDUCATION,
DANNY MOBLEY, individually and in his official
capacity as Superintendent of Education for the Cleburne
County Board of Education, et al.,

                                                                  Defendants-Appellees.

                              ________________________

                      Appeal from the United States District Court
                         for the Northern District of Alabama
                            _________________________
                                   (May 18, 2001)

Before WILSON and COX, Circuit Judges, and RYSKAMP*, District Judge.

PER CURIAM:



       *
                Honorable Kenneth L. Ryskamp, U.S. District Judge for the Southern District of
Florida, sitting by designation.
       The district court designated for interlocutory review under 28 U.S.C. § 1292(b)

both its form pretrial order for employment discrimination actions that allege more

than one discriminatory motive and a later order declining to modify that pretrial

order. A motions panel of this court granted review.1

                                        Background

       Mary L. Harrington sued the Cleburne County (Alabama) School Board, its

members, and the school superintendent, claiming that she was paid less for her

administrative job with the school system than whites and males in comparable

positions, in violation of the Equal Pay Act, Equal Protection Clause, and Title VII.

In summary judgment proceedings the action came to include (without amendment to

the complaint) claims that the Board discriminated against Harrington on the basis of

race and sex in imposing additional work on her, not keeping her informed, awarding

her less compensatory leave time than others, and in refusing to extend her annual

nine-month contract to ten. The district court granted summary judgment on the

equal-compensation claims, reasoning that “a deal is a deal,” and that once Harrington

had accepted her job and salary in settlement of an earlier discrimination action, she


       1
                Because § 1292(b) authorizes interlocutory review of orders “involv[ing] a
controlling question of law,” 28 U.S.C. § 1292(b), discretionary pretrial orders like this one
ordinarily do not fall within its purview. Armstrong v. Martin Marietta Corp., 138 F.3d 1374,
1386 (11th Cir. 1998) (en banc). But no one here challenges the motion panel’s ruling, and we
do not revisit the issue.

                                               2
could not challenge the salary as discriminatory. The unpleaded claims remain to be

tried.

         Following this partial summary judgment, the district court sua sponte entered

a “Special Order in Cases of Disparate Treatment in Which More Than One

Proscribed Motivational Factor Is Alleged.”2              The Order gives a plaintiff like

Harrington, who alleges more than one basis of discrimination against her, three

options for refining her claims if the defendant opts to put her to the choice. First, the

plaintiff may limit her claims to one alleged basis of discrimination (for example,

race) and abandon all claims resting on other bases (such as ones for sex

discrimination). Second, she may choose to pursue an “intersectional” theory of

discrimination, that is that the defendant treated her disparately because she belongs

simultaneously to two or more protected classes. Third, she may elect to claim

distinct grounds of discrimination (e.g., the defendant discriminated against her either

because she is black, or because she is female, or both). But the third option carries

a price: claims based on distinct kinds of discrimination must be tried separately to

the same jury, and the defendant gets to pick which claims are tried first. The court

states, moreover, that if the plaintiff chooses the third option, the defendant will be




         2
               The order is attached as an appendix to this opinion.

                                                3
“deemed ‘prevailing’” in any partial trial in which the defendant secures a defense

verdict.

       Harrington sought relief from the Special Order, which the court denied. She

refused to abandon either all of her claims of sex discrimination or all of her claims

of race discrimination, and when the defendants forced her to choose from the

remaining two options, she opted to pursue claims of intersectional discrimination

(that is, the theory that she was treated disparately because she is a black woman).3

In this appeal, Harrington complains that the Special Order imposed on her an

unjustifiable “Hobson’s choice.” Her asserted claims, she says, were based on distinct

grounds of race and sex discrimination, and not on the intersectional theory that she

elected under duress because of the conditions imposed on the trial of claims based

on distinct discriminatory motives.4            According to her, the Order thus abusively

deprived her of her asserted claims and foisted on her claims she did not make and

does not wish to prove.



       3
                Harrington has also pleaded a retaliation claim — that her lower salary and
benefits are the result of the earlier lawsuit that she settled — but the district court apparently did
not put that claim in the mix.
       4
                 Harrington does not argue that she wished to try to prove separately both
discrimination on an intersectional theory and discrimination on distinct grounds, i.e., “they
discriminated against me either because I am a black woman, or because I’m black, or because
I’m female, or any combination of any of the above.” So we do not address here the case of a
plaintiff forced by the Special Order to abandon one of those three claims.

                                                  4
      Pretrial orders on the conduct of litigation are reviewable only for abuse of

discretion. Bouchard Transp. Co. v. Fla. Dep’t of Envtl. Protection, 91 F.3d 1445,

1448 (11th Cir. 1996). We agree with Harrington that parts of the Special Order

exceeded the court’s discretion.

                                      Discussion

      The first step here is to narrow the issues. Harrington did not choose

completely to abandon all of her claims based either on race discrimination or on sex

discrimination, nor did she have to under the Special Order if she accepted the other

conditions. Likewise, the Special Order did not foist an intersectional theory on her

unless the Order’s third option — separate trials of claims based on distinct

discriminatory motives — was itself abusive. Whether the conditions imposed on the

third option were abusive is thus the core issue.

      The most important of those conditions, separate trials of claims based on

distinct grounds of discrimination, was within the court’s discretion. Fed. R. Civ. P.

42(b) confers broad discretion on the district court in this area, permitting bifurcation

merely “in furtherance of convenience.” That is not a high standard, and the district

court’s concern for clarifying the issues to be tried suffices to permit the court to

separate the trials. This court has deplored muddled complaints in employment

discrimination and civil rights cases and urged district courts to “take a firm hand” in


                                           5
ensuring efficient and clear proceedings on claims deserving trial. Chapman v. AI

Transport, 229 F.3d 1012, 1027 (11th Cir. 2000) (en banc); see also Morro v. City of

Birmingham, 117 F.3d 508, 515 (11th Cir. 1997); Oladeinde v. City of Birmingham,

963 F.3d 1481, 1484 (11th Cir. 1992). This action is a poster child for confusion in

pleading.   The disparate-treatment claims Harrington presently asserts are not

explicitly in the complaint. And even though the pretrial order’s statement of her

position does contain these claims, the statement mixes them in with the equal-

compensation claims that Harrington has already lost on summary judgment.

Submitting this morass of claims based on different grounds of discrimination to a

jury could overwhelm or confuse the jury, and separating trials in some way, such as

by the asserted ground of discrimination, is one way of alleviating that confusion. The

district court thus had a colorable reason for directing separate trials.

      Against this colorable (even if not compelling) reason Harrington has proffered

no persuasive prejudice. She complains that it would drain her resources to present

the same circumstantial evidence of discrimination twice, but we cannot imagine that

the court would waste its time (or the jury’s) by requiring the same jury to hear the

same evidence more than once. Nor has Harrington pointed to any specific potential

evidence that would have to be presented more than once. Separate trials do not,

moreover, prevent a jury from awarding Harrington relief on her claims if she has the


                                           6
evidence to support them. At best, Harrington lost whatever marginal possibility she

had of an erroneous verdict in her favor, because of jury confusion, on weak claims.

That is not legitimate prejudice.

      The district court went too far in two respects, however. The first was in

allowing the defense to choose, at its whim, in which order Harrington tries her

claims. Because logic does not compel a particular order here (as it would for a

bifurcated liability-damages trial, for instance) the order of trial was no doubt a matter

in the court’s discretion, like the order of proof within a single trial. See Vaughan v.

Tex. Branches, Inc., 112 F.2d 536, 537 (5th Cir. 1940). But “in a system of laws

discretion is rarely without limits.” Indep. Fed’n of Flight Attendants v. Zipes, 491

U.S. 754, 758, 109 S. Ct. 2732, 2735 (1989). At a minimum, we think, the district

court had to have had some legitimate reason for letting the defense make a tactical

decision for Harrington. The district court was perhaps frustrated at the frequency of

muddled pleading in employment discrimination actions.               But handicapping

Harrington at trial does nothing to address that problem.             Harrington does,

furthermore, suffer some cognizable prejudice from this condition on her choice.

Even if the order of proof is a matter of the court’s discretion, a litigant like

Harrington can fairly expect that on matters touching at the core of trial strategy—

witness order, organization of questioning, and the like — the court will wield its


                                            7
power sparingly, perhaps to avoid wasting time or prejudicing the other side. The

court deprived Harrington of that legitimate expectation with no good reason. Worse

yet, it left those strategic choices up to the defendants for them to use as they see fit

to advance their cause, possibly to Harrington’s detriment. We thus think the court

abused its discretion in not leaving to Harrington the option of deciding the order in

which her claims are tried, or at least in not determining the order of trials on some

neutral basis, such as the order in which the complaint pleads the claims grounded on

different kinds of discrimination.

      The court also went too far in deeming the defendants to be “prevailing” parties

ex ante. The Order puts “prevailing” in quotation marks, invoking the language of

Title VII’s fee-shifting statute and 42 U.S.C. § 1988, and it thus sends a signal that the

court will award attorney fees to the defendants if the jury returns a defense verdict

at any separate trial. See 42 U.S.C. § 2000e-5(k) (authorizing the court to award the

“prevailing party” its attorney fees). That signal serves no imaginable purpose other

than cowing Harrington into taking the Special Order’s second option, however that

may benefit the court. The promise to award fees certainly does nothing to clarify the

claims actually asserted. The court’s promise, moreover, could probably not be

legally carried out, at least not as made. A defendant who has prevailed has not

“prevailed” unless the plaintiff’s action was “frivolous, unreasonable, or without


                                            8
foundation.” Sayers v. Stewart Sleep Ctr., Inc., 140 F.3d 1351, 1353 (11th Cir. 1998)

(quoting Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 421, 98 S. Ct. 694, 700

(1978)). The Special Order makes no determination that any of Harrington’s claims

are “frivolous,” nor does a defense verdict necessarily imply frivolity. See Sayers,

140 F.3d at 1353. The Special Order’s promise to deem the defendants “prevailing,”

should they prevail at either of Harrington’s trials, is thus an implicit threat with no

legitimate purpose. It was an abuse of discretion.

                                     Conclusion

      We can decide only the case before us. Different facts, claims, procedural

histories, and so on may properly persuade future panels that one or more provisions

of the Special Order are an abuse of discretion in the circumstances of those future

appeals. We merely hold here that the court abused its discretion in discouraging

Harrington from pursuing the claims she contends she has asserted, first by allowing

the defense to choose the order of separate trials and second by threatening to award

fees improperly after trial.

      We accordingly (1) vacate the order denying Harrington relief from the Special

Order to the extent that it amends the pretrial order to show that Harrington is

pursuing an intersectional theory of discrimination; (2) vacate the Special Order to the

extent it permits the defense to choose the order of separate trials on the distinct


                                           9
theories of discrimination and threatens to impose attorney fees inconsistent with law;

and (3) remand with instructions that the district court permit Harrington to articulate

her claims anew under the Special Order as altered by our mandate.

      AFFIRMED IN PART; VACATED IN PART AND REMANDED WITH

INSTRUCTIONS.




                                          10
                 IN THE UNITED STATES DISTRICT COURT
               FOR THE NORTHERN DISTRICT OF ALABAMA
                           EASTERN DIVISION

MARY L. HARRINGTON       }
                         }
    Plaintiff,           }
                         }                          CIVIL ACTION NO.
v.                       }
                         }                              97-AR-1831-E
CLEBURNE COUNTY BOARD OF }
EDUCATION, et al.,       }
                         }
    Defendants.          }

       SPECIAL ORDER IN CASES OF DISPARATE TREATMENT
      EMPLOYMENT DISCRIMINATION IN WHICH MORE THAN
      ONE PROSCRIBED MOTIVATIONAL FACTOR IS ALLEGED

      This order is being entered in this and all other jury cases assigned to the

undersigned in which a plaintiff-employee alleges disparate treatment and invokes

more than one federal statutory provision proscribing particular conduct in which a

defendant-employer has allegedly engaged. The problem inherent in this procedural

situation is described in Sheridan v. E. I. DuPont de Nemours and Company, 100 F.3d

1061, 1085 (3d Cir. 1995) (Alito, J., concurring in part and dissenting in part), as

follows:

      Perhaps the clearest examples are cases in which the plaintiff challenges
      a single adverse employment action based on two or more alternative
      grounds, a rather common tactic. See, e.g., Roxas v. Presentation
      College, 90 F.3d 310 (8th Cir. 1996) (plaintiff alleged race, national
      origin, gender, and age discrimination); Lawrence v. Nat’l Westminster

                                         11                          Appendix to Opinion
      Bank of N.J., 98 F.3d 61 (3d Cir. 1996); Rabinovitz v. Pena, 89 F.3d 482
      (7th Cir. 1996) (age, religion, and retaliation); Ford v. Bernard Fineson
      Dev. Ctr., 81 F.3d 304 (2d Cir. 1996) (race, age, and gender); Hartsel v.
      Keys, 87 F.3d 795 (6th Cir. 1996), cert. denied, ___ U.S. ___, 117 S. Ct.
      683, 136 L. Ed.2d 608 (1997) (age, gender, and retaliation); Evans v.
      Technologies Applications & Service Co., 80 F.3d 954 (4th Cir. 1996)
      (age and gender); Austin v. Owens-Brockway Glass Container, Inc., 78
      F.3d 875 (4th Cir. 1996), cert. denied, ___ U.S. ___, 117 S. Ct. 432, 136
      L. Ed.2d 330 (1996) (gender and disability); Americanos v. Carter, 74
      F.3d 138 (7th Cir. 1996), cert. denied, ___ U.S. ___, 116 S. Ct. 1853,
      134 L. Ed.2d 953 (1996) (age, gender, and national origin); Castillo v.
      Frank, 70 F.3d 382 (5th Cir. 1995) (age, gender, and national origin);
      Meinecke v. H & R Block, 66 F.3d 77 (5th Cir. 1995) (age and gender);
      Johnson v. Office of Senate Fair Employment Practices, 35 F.3d 1566
      (Fed. Cir. 1944) (gender and religion); Dashnaw v. Pena, 12 F.3d 1112,
      1114 (D.C. Cir. 1994), cert. denied, 513 U.S. 959, 115 S. Ct. 417, 130
      L. Ed.2d 333 (1994) (age, national origin, religion, and race); Sarsha v.
      Sears, Roebuck & Co., 3 F.3d 1035 (7th Cir. 1993) (age and gender).

      To take one of the many possible combinations of claims, an employee
      might contend that he or she did not get a promotion (1) because of
      gender and (2) because of disability. If the record in such a case contains
      strong evidence of disability discrimination, rejection of the employer’s
      explanation (let us say, inferior qualifications) will not be itself permit
      a strong inference that the employer’s true reason was gender
      discrimination.

Obviously, no court can outline all possible combinations of claims of employment

discrimination.

      Unless within seven (7) calendar days after plaintiff(s) receive notice of the

setting of a pre-trial conference in the above-entitled case plaintiff fails to amend the

complaint to eliminate all claims of prohibited employer conduct except one (not

including a claim of retaliation connection with previous prohibited conduct, if

                                           12                          Appendix to Opinion
alleged), defendants at the pre-trial conference will be afforded the option of requiring

(1) plaintiff to elect a theory of so-called “intersectional” or multi-motivational

proscribed conduct; or (2) separating the differing claims for trial ad seriatum in the

order selected by defendant, employing the same jury. If defendants have interposed

the so-called Mt. Healthy defense, defendants will be allowed to elect between

employing that defense and not employing it in each successive jury proceeding at the

beginning of that proceeding. In the event defendants should obtain a favorable

verdict on a separate claim thus tried, defendant(s) shall be deemed “prevailing” as to

that claim.

      In the event plaintiff believes that this case is so unique that this rule should not

be applied in this case, plaintiff shall show cause in writing within fourteen (14)

calendar days, if plaintiff can do so, why the rule should be not apply in this case.

      DONE this 11th day of January, 2000.


                                            /s/ William M. Acker, Jr.
                                         WILLIAM M. ACKER, JR.
                                         UNITED STATES DISTRICT COURT




                                           13                            Appendix to Opinion
