Labor & Employment Law Daily Wrap Up, DISCRIMINATION—PREGNANCY—11th Cir.: Member of district attorney’s ‘personal staff’ foreclosed from asserting sex discrimination claim, (Apr 4, 2025)

By Steven D. Cole, J.D.

Title VII’s exemption for the personal staff of elected officials applied, despite the fact that the district attorney’s office first raised it as an affirmative defense in its summary judgment motion.

A district court did not err when it granted summary judgment in favor of the Fulton County, Georgia, District Attorney’s Office (DA’s Office), held the Eleventh Circuit, in an unpublished decision. The employee, who served as third-in-command at the DA’s Office, alleged pregnancy discrimination under Title VII following the termination of her employment. The district court allowed the DA’s Office to assert Title VII’s personal-staff exemption for the first time as an affirmative defense at summary judgment, finding that the former Deputy Chief of Staff was not prejudiced by the DA’s Office’s untimely pleading. The appeals court held that the district court correctly applied a six-factor test in determining that the exemption barred the employee’s suit under Title VII (Younge v. Fulton Judicial Circuit District Attorney’s Office, No. 23-11418 (11th Cir. April 1, 2025, per curiam, unpublished)).

Pregnancy discrimination. The plaintiff in this case was hired as the Deputy Chief of Staff for Fulton County’s DA’s Office, a position in which she served directly under and worked closely with the publicly-elected District Attorney (DA), was an essential employee as the DA’s Office’s third-in-command, was on call around the clock, supervised more than 30 employees, and passed along information to the community on behalf of the DA’s Office. Yet approximately two months in, after informing the DA that she was pregnant, the DA stopped meeting with her, excluded her from meetings, and, two weeks later, terminated her employment. The employee brought this suit, asserting several federal claims sounding in discrimination and retaliation. At this stage in the litigation, her sole remaining claim was for pregnancy discrimination under Title VII.

Affirmative defenses. The DA’s Office answered the employee’s complaint by asserting several affirmative defenses, but it was not until discovery had closed that it first asserted Title VII’s personal-staff exemption as a defense in its motion for summary judgment. In relevant part, this provision stipulates that “the term ‘employee’ shall not include any person elected to public office … or any person chosen by such officer to be on such officer’s personal staff.” 42 U.S.C. § 2000e(f). The district court held that the exemption applied and that its belated assertion by the DA’s Office did not prejudice the employee. She subsequently appealed the district court’s decision.

Prejudice. A circuit court split exists with regard to whether Title VII’s exemptions to employee status are affirmative defenses or elements of a plaintiff’s prima facie case, and the Eleventh Circuit has not ruled on this issue. Regardless, the parties litigated as if the personal-staff exemption was an affirmative defense, and the district court treated it as such. Accordingly, the appeals court assumed without deciding that the exemption was a defense that was subject to Rule 8(c) of the FRCP. The court further explained that it has previously held, and repeatedly affirmed, that “a district court may receive evidence of an unpleaded affirmative defense if the plaintiff was not ‘prejudiced’ by the defendant’s failure to plead the defense in its answer.”

On appeal, the employee argued that she was prejudiced by the untimely assertion of the personal-staff exemption because it denied her the opportunity to conduct purposeful discovery on this issue. The court disagreed, noting that the record contained “copious discovery evidence concerning each of the six factors” that courts consider when determining if an individual is on an elected official’s personal staff.

Personal staff. A federal district court situated in Alabama, in addressing the question of whether an individual comprised part of an elected official’s “personal staff” under Title VII, developed a non-exhaustive six-factor test to conduct the analysis. See Laurie v. Ala. Ct. of Crim. Appeals, 88 F. Supp. 2d 1334 (M.D. Ala. 2000). Because the parties and the district court applied the Laurie test below, the appeals court assumed without deciding that it was the proper standard to use in order to determine whether the employee was part of the DA’s personal staff.

The employee conceded that three of the six factors weighed in favor of applying the exemption—namely, that she was personally accountable only to the elected official, the elected official exercised a considerable amount of control over her position, and she held a high place within the organization’s chain of command. The employee argued that there existed a genuine dispute of material fact concerning the other three factors. However, the appeals court agreed with the district court’s holding that the Laurie factors, as a whole, weighed in favor of finding that the Deputy Chief of Staff was not an “employee” for the purposes of invoking Title VII’s protections.

Working relationship. The first of the three disputed factors was neutral. This factor asks whether “the elected official has plenary powers of appointment and removal.” Georgia’s statutory framework provided the DA with plenary power to terminate the employee, but a more limited power to appoint her. The other two disputed factors lent support to the position taken by the DA’s Office on this issue. These factors direct courts to consider “whether the person in the position at issue represents the elected official in the eyes of the public,” and “the actual intimacy of the working relationship between the elected official and the person filling the position.”

Here, the record demonstrated, largely through the employee’s own testimony, that she often acted and spoke on the DA’s behalf to the public, and that she had a close working relationship with the DA—even testifying that she was “literally” the DA’s “go-to person for almost everything.” Regarding this last factor, the employee argued that because this intimate relationship ended when she announced her pregnancy, she was no longer considered part of his personal staff at the time of her firing. The court was unconvinced, noting that the DA never demoted her, and, with regard to the DA’s treatment during the two weeks preceding the termination of her employment, “we decline to elevate that behavior to an actionable demotion, lest we effectively eliminate the personal staff exemption from Title VII.”

The case is No. 23-11418.

Attorneys: Matthew C. Billips (Barrett & Farahany) For Jasmine Younge. Noah Green (Henefeld & Green) For Fulton Judicial Circuit District Attorney’s Office, Georgia.

Companies: Fulton Judicial Circuit District Attorney’s Office, Georgia

Cases: Discrimination SexDiscrimination PregnancyDiscrimination Discharge GeorgiaNews