                                                                                    PUBLISH


                  IN THE UNITED STATES COURT OF APPEALS
                                                                            FILED
                            FOR THE ELEVENTH CIRCUIT
                                                                   U.S. COURT OF APPEALS
                                                                     ELEVENTH CIRCUIT
                                                                          08/30/99
                                                                      THOMAS K. KAHN
                                Nos. 98-6142 and 98-6186                   CLERK



                             D. C. Docket No. 95-CV-570-W


SANDRA LEIGH STIMPSON,

                                                           Plaintiff-Appellee,

                                            versus

CITY OF TUSCALOOSA, J. RUSSELL
GIBSON, et al.,
                                                           Defendants-Appellants.



                     Appeals from the United States District Court
                        for the Northern District of Alabama

                                     (August 30, 1999)

Before COX, Circuit Judge, FAY, Senior Circuit Judge, and NANGLE*, Senior
District Judge.




       *
       Honorable John F. Nangle, Senior U.S. District Judge for the Eastern District of
Missouri, sitting by designation.
PER CURIAM:

       The City of Tuscaloosa ("the City") and the Civil Service Board of

Tuscaloosa ("the Civil Service Board") appeal a judgment against them under Title

VII for wrongful termination based on sex. They argue that the district court

wrongly denied their motion for a judgement as a matter of law because the

plaintiff did not introduce any evidence that the City's alleged discrimination

directly caused her termination. We agree, and therefore REVERSE.1



                                      I. BACKGROUND



       Sandra Stimpson was employed as a police officer by the city of Tuscaloosa

since 1975. Over the course of her employment, she had a troubled disciplinary

record. She received various forms of punishments ranging from reprimands to

suspensions, for such transgressions as: giving beer to a prisoner; several instances

of deception, including lying about making secret tape recordings of conversations

with a superior officer; rudeness to the public; insubordination; several unexcused


       1
         Appellants raise sixteen other grounds for reversal. Because the issue we address is
dispositive of the case, we need not sort out the wheat from the chaff in the other claims of error.
Appellee also filed a cross-appeal in this case, attacking the trial court's decision to grant
summary judgement for the Civil Service Board. In her brief, Stimpson makes this cross appeal
contingent on this Court reversing the trial court's joinder of the Board as a Rule 19 party.
Because we do not reverse that ruling, we need not address Stimpson's cross-appeal.

                                                 2
absences, including at least one while moonlighting; and one instance of

threatening to shoot her partner. Despite the repetitive and serious nature of some

of these violations, Stimpson was given many chances to improve her behavior.

      In September of 1992, Stimpson came to work with her hand and wrist

immobilized in a splint. She presented a note from her doctor, Dr. Ikard, stating

that she was fit to return to work. After seeing the splint, Stimpson's superiors

became concerned that her immobilized hand might hinder her ability to perform

some of her official duties safely. Chief Swindle decided that the City needed to

verify that Dr. Ikard knew what Stimpson's job duties were and took those duties

into account when he deemed her fit to return to work. When Assistant Chief

Wilkins contacted Dr. Ikard to clarify these issues, Ikard refused to discuss the

matter unless Stimpson signed a medical release. Wilkins next sent Stimpson's

sergeant to get her to execute a release, but Stimpson refused to sign. The next day,

Wilkins himself requested that she sign the release, but Stimpson again refused.

The following day, Wilkins again approached Stimpson. This time he had

developed a new "return to work" form that described a patrol officer's job duties

and explained that there was no alternative "light-duty" assignment available. He

asked Stimpson to return to Dr. Ikard and have him sign the new form. Stimpson

refused. He then ordered Stimpson to go to the Emergi-Care clinic to have a


                                          3
different doctor examine her hand and wrist and determine whether she could

safely perform her job functions. Faced with suspension if she did not comply,

Stimpson went to the clinic.

      Stimpson was very agitated when she got to the clinic. According to several

witnesses, she raised her voice and used profanities. Some of the witnesses filed

complaints and expressed shock that a police officer would behave that way in

public, especially in uniform. Once in the doctor's office, she refused to cooperate

with the nurse's initial examination and threatened to sue the doctor, Doctor

Lovelady, if he contradicted Dr. Ikard's recommendation. After being threatened,

Lovelady refused to perform the examination. Later, he called the police

department and complained about the incident to Chief Swindle. Stimpson returned

to work, telling her supervisor that Lovelady did not examine her and she therefore

did not get the return to work form signed. She was then suspended until such a

time as she could produce the form signed by a doctor. Only after being suspended

did she contact Dr. Ikard and get him to sign the form. After getting the signature,

she returned to work with the form and was reinstated.

      In October, following an investigation of the Emergi-Care incident by the

Tuscaloosa Police Department, Stimpson was suspended with pay. Based on her

behavior at Emergi-Care coupled with her history of disciplinary problems, Chief


                                          4
Swindle recommended that she be terminated. Under Alabama state law, the City

of Tuscaloosa has no power to unilaterally fire a police officer. Instead, Alabama

has created a Civil Service Board of Tuscaloosa, whose members are appointed by

the Governor of Alabama. The Board, alone, has the power to terminate a police

officer. Chief Swindle informed Stimpson that he intended to recommend her

discharge to the Board. He offered her the chance to resign instead, as he testified

he had done with all of the other officers he had intended to refer to the Board for

discharge. She refused to resign, and so Swindle instituted proceedings before the

Civil Service Board. The Board, which at the time consisted of two men and one

woman, held a three-day hearing in January of 1993. Stimpson was represented by

counsel at this hearing and put on witnesses in her defense. On January 8, 1993, the

Civil Service Board unanimously decided to terminate Stimpson based on her

conduct surrounding the Emergi-Care incident, after also considering some of the

most recent and egregious misconduct in her disciplinary record.

      In April of 1993, Stimpson filed a charge with the EEOC, alleging

discriminatory discharge based on sex and age against the City of Tuscaloosa.

After receiving a right to sue letter from the EEOC, Stimpson filed suit in the

Northern District of Alabama under Title VII and the ADEA. She eventually added

counts under 42 U.S.C. § 1983 against Swindle and Wilkins and added the


                                          5
members of the Civil Service Board as defendants in their official capacity. Before

trial, the § 1983 claims were dropped and the Civil Service Board's motion for

summary judgement was granted. The Board was subsequently reintroduced as a

Rule 19 defendant because it would be needed procedurally if reinstatement was

granted to Stimpson, but the Board was no longer a defendant for liability

purposes.

        Prior to the introduction of evidence at trial, Stimpson voluntarily dismissed

her age discrimination claim. Before and at trial, Stimpson's case was based on

trying to show that the City's decision to recommend her termination was the

discriminatory adverse employment action. At no time did Stimpson ever introduce

any evidence or even make a concrete allegation that the Board's decision to

terminate her was based on her sex. The City moved for judgment as a matter of

law on several grounds, including that it had not actually terminated Stimpson, and

that she had not proven that the decision to terminate her, made by the Board, was

based on sex. Following the district court's denial of the motion, the jury returned a

verdict in favor of Stimpson. The court's final judgement ordered her reinstatement

and awarded her $300,000 damages plus back pay and attorneys fees. Appellants

filed timely notice of appeal and we have jurisdiction pursuant to 28 U.S.C. §

1291.


                                           6
                           II. STANDARD OF REVIEW



      We review denial of a motion for judgment as a matter of law de novo, using

the same legal standard as the district court. Walls v. Button Gwinnett Bancorp,

Inc., 1 F.3d 1198, 1200 (11th Cir. 1993). Under this standard, we must view the

evidence in the light most favorable to the non-moving party. Id.



                                 III. DISCUSSION



      Appellants argue that Stimpson failed to produce any evidence that the Civil

Service Board's decision to terminate her was based on sex. Stimpson contends that

the motivation of the Board is irrelevant, and that the City's recommendation that she

be terminated is actionable in and of itself. We disagree. Title VII prohibits the

discharge of an employee, or other discrimination with respect to terms and conditions

of a person's employment, based on the employee's sex. 42 U.S.C. § 2000(e)-2(a)(1).

In order to prove intentional discrimination under this section, a plaintiff must

establish (1) the employer's discriminatory animus towards the employee based on the

employee's protected characteristic; (2) a discharge or other significant change in the

terms or conditions of employment; and (3) a causal link between the two. Llampallas


                                          7
v. Mini-Circuits, Lab, Inc., 163 F.3d 1236 (11th Cir. 1998). In this case, there is no

question that Stimpson was discharged. Although we have grave reservations about

the disparate treatment evidence presented by Stimpson, we need not address that

issue because even assuming, arguendo, that she introduced sufficient evidence to

allow a reasonable jury to find discriminatory animus on the part of the City, the

causal link between that animus and her termination is broken by the Board's hearing

and independent decision to actually terminate her.

      We note at the outset that under Alabama law, the City has no power to

terminate police officers such as Stimpson. Under Act No. 249 of the Alabama

legislature, 1947 Ala. Acts 174, only the Civil Service Board has the power to do so.

The Board has the discretion to terminate, give a lesser form of punishment to, or

entirely vindicate a police officer brought before it. Consequently, the City's

recommendation that the Board terminate Stimpson does not, itself, constitute a

change in the terms or conditions of employment absent a sufficient causal link

between the termination and the discriminatory animus behind the recommendation.

      We have previously stated the general proposition that in some cases, a

discharge recommendation by a party with no power to actually discharge the

employee may be actionable if the plaintiff proves that the recommendation directly

resulted in the employee's discharge. Zaklama v. Mt. Sinai Medical Center, 842 F.2d


                                          8
291, 294 (11th Cir. 1988). However, as we have recently explained, this causation

must be truly direct. When the biased recommender and the actual decisionmaker are

not the same person or persons, a plaintiff may not benefit from the inference of

causation that would arise from their common identity. Instead, the plaintiff must

prove that the discriminatory animus behind the recommendation, and not the

underlying employee misconduct identified in the recommendation, was an actual

cause of the other party's decision to terminate the employee. Llampallas, 163 F.3d at

1248.

        One way of proving that the discriminatory animus behind the recommendation

caused the discharge is under the "cat's paw" theory. This theory provides that

causation may be established if the plaintiff shows that the decisionmaker followed

the biased recommendation without independently investigating the complaint against

the employee. In such a case, the recommender is using the decisionmaker as a mere

conduit, or "cat's paw" to give effect to the recommender's discriminatory animus. Id.

at 1249.

        In this case, Stimpson has not introduced any evidence that could reasonably

indicate that the City's alleged discriminatory animus influenced the Board's decision

to terminate her. Furthermore, she has not introduced any evidence to show that the

Board acted as a "cat's paw" or rubber stamp for the City's recommendation. To the


                                          9
contrary, the evidence shows that the Board has the sole power and discretion to

terminate police officers, that its members are appointed by the Governor of Alabama,

that it conducted a three day hearing to investigate the charges, and that during the

hearing Stimpson was represented by legal counsel and was allowed to put on defense

evidence and witnesses.2 It is hard to imagine any other procedural device that would

ensure a more fair and independent decision than that of the Civil Service Board. We

need not announce a bright line at which an independent investigation becomes a

rubber stamp to resolve this case, because the record before us does not contain any

hint of a cat's paw arrangement. Consequently, we hold that Stimpson has failed to

produce sufficient evidence to allow a reasonable jury to find causation between the

City's alleged discriminatory animus and the Board's decision to terminate her. We

VACATE the district court's Order of Final Judgment and Permanent Injunction and

REMAND with instructions to enter judgment for appellants, consistent with this

opinion.




       2
         We curiously note that Stimpson apparently never mentioned any discriminatory motive
behind the charges at her hearing before the Civil Service Board. It seems like that would have
been an ideal time and place to do so.

                                              10
