Case: 12-15900   Date Filed: 04/08/2013   Page: 1 of 12


                                                       [DO NOT PUBLISH]

          IN THE UNITED STATES COURT OF APPEALS

                   FOR THE ELEVENTH CIRCUIT
                     ________________________

                           No. 12-15900
                       Non-Argument Calendar
                     ________________________

                 D.C. Docket No. 1:12-cv-01277-JOF



DENISE DEMAREE,
MEGAN HUMPHREYS,
ALLISON JONES,
CLARE MANSELL,
MARY MCCOY,
TIM MCKINNEY,
MIKE MITCHELL,
JANET STALLING,
RAY SPLAWN,
SANDY WADE,

                   Plaintiffs - Appellants,

versus

FULTON COUNTY SCHOOL DISTRICT,

                   Defendant - Appellee.

                     ________________________

              Appeal from the United States District Court
                 for the Northern District of Georgia
                    ________________________

                            (April 8, 2013)
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Before MARCUS, MARTIN and FAY, Circuit Judges.

PER CURIAM:

      Plaintiffs-Appellants Denise Demaree, Megan Humphreys, Allison Jones,

Clare Mansell, Mary McCoy, Tim McKinney, Mike Mitchell, Janet Stalling, Ray

Splawn, and Sandy Wade, elementary school orchestra and band teachers, appeal

from the district court’s final order dismissing their suit against the Fulton County

School District (“School District”). Plaintiffs’ complaint alleged that the School

District violated their rights (and those of about 40 others) under the Equal

Protection Clause of the United States and Georgia Constitutions when the teachers

lost their jobs during a reduction in force (“RIF”) implemented by the School

District in 2010. On appeal, Plaintiffs argue that the district court erred in holding

that: (1) there was a rational basis for the School District’s different treatment of

Plaintiffs and all other employees; (2) the exception to the application of non-

mutual offensive collateral estoppel delineated in United States v. Mendoza, 

 (1984), extended to the School District; and (3) the equal protection issue

was not “actually litigated” in Lee v. Fulton County Board of Education, 2010-CV-

193987 (Ga. Sup. Ct. 2011). After thorough review, we affirm.

      We review a judgment on the pleadings de novo. Cannon v. City of W.

Palm Beach, 

, 1301 (11th Cir. 2001). “Judgment on the pleadings is

appropriate where there are no material facts in dispute and the moving party is


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entitled to judgment as a matter of law.” Id. We may affirm the district court’s

judgment on any ground that the record supports. Lucas v. W.W. Grainger, Inc.,

, 1256 (11th Cir. 2001).

      The relevant allegations, for purposes of the motion for judgment on the

pleadings, are these.     Plaintiffs were employed by the School District as

elementary instrumental (band and orchestra) music teachers during the 2009-2010

school year. Plaintiffs’ teaching contracts were all non-renewed at the conclusion

of the 2009-2010 school year, as the result of a RIF instituted by the Fulton County

Board of Education in the spring of 2010. The RIF described a five-step analysis

considering factors of performance and tenure.            The first step eliminated

employees who did not have tenure and who had performance issues. Each step in

the process went further into non-tenured and tenured positions, culminating in the

fifth step which eliminated employees based on tenure if not enough positions

were eliminated by the first four steps.

      The positions of elementary orchestra and band school teachers, however,

were not eliminated through this five-step analysis. Instead, the School District

voted to non-renew all elementary band and orchestra teachers because those

positions were deemed “non-essential” functions. These positions were described

as “programs/functions eliminated.” The non-renewal of the elementary school

band and orchestra teachers reduced the School District staff by 54 positions.


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      One group besides elementary orchestra and band teachers was also placed

in the “programs/functions eliminated” -- Grades 1 through 3 paraprofessionals.

However, the 165 Grades 1 through 3 paraprofessionals were not eliminated as a

group like the elementary orchestra and band teachers; rather, they were analyzed

through the five-step RIF process. This resulted in some of the Grades 1 through 3

paraprofessionals’ continued employment in other paraprofessional positions.

Both the paraprofessionals and the orchestra and band teachers are certified to

teach Pre-K through 12th grade.

      In this action, Plaintiffs alleged that they were similarly situated with the

Grades 1 through 3 paraprofessionals and that the School District had no rational

basis for treating the two groups differently. The district court rejected their

claims, and this timely appeal follows.

      First, we reject the merits of the Plaintiffs’ Equal Protection claim. The

Fourteenth Amendment of the federal Constitution provides: “No state shall . . .

deny to any person within its jurisdiction the equal protection of the laws.” U.S.

Const. amend. xiv, § 1. Thus, “all persons similarly situated should be treated

alike.” City of Cleburne, Tex. v. Cleburne Living Ctr., 

, 439 (1985).

“The general rule is that legislation is presumed to be valid and will be sustained if

the classification drawn by the statute is rationally related to a legitimate state

interest.” Id. at 440. “This standard is easily met.” Leib v. Hillsborough Cnty.


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Pub. Transp. Comm’n, 

, 1306 (11th Cir. 2009); Deen v. Egleston,

, 1230 (11th Cir. 2010) (“rational review” standard gives states

“wide latitude” when crafting “social or economic” legislation). However, the

“State may not rely on a classification whose relationship to an asserted goal is so

attenuated as to render the distinction arbitrary or irrational.” City of Cleburne,

473 U.S. at 446-47. The Supreme Court has further held that:

      [E]qual protection is not a license for courts to judge the wisdom, fairness,
      or logic of legislative choices. In areas of social and economic policy, a
      statutory classification that neither proceeds along suspect lines nor infringes
      fundamental constitutional rights must be upheld against equal protection
      challenge if there is any reasonably conceivable state of facts that could
      provide a rational basis for the classification.

FCC v. Beach Commc’ns, 

, 313-14 (1993); see also Panama City

Med. Diagnostic, Ltd. v. Williams, 

, 1545 (deference must be given to

legislature “because lawmakers are presumed to have acted constitutionally despite

the fact that, in practice, their laws result in some inequality”) (quotation omitted).

      On a “rational-basis review” the classification bears a “strong presumption

of validity” and a party challenging the classification must “negative every

conceivable basis which might support it.” Beach Commc’ns, 508 U.S. at 314-15

(quotation omitted). A legislature need not articulate its reasons for enacting a

statute. Id. at 315. The Court continued:

      Defining the class of persons subject to a regulatory requirement -- much
      like classifying governmental beneficiaries -- inevitably requires that some
      persons who have an almost equally strong claim to favored treatment be
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      placed on different sides of the line, and the fact [that] the line might have
      been drawn differently at some points is a matter for legislative, rather than
      judicial, consideration.

Id. at 315-16 (quotation omitted).

      It is undisputed that the RIF and its application to Plaintiffs does not involve

a suspect class or a fundamental right. Therefore, Plaintiffs’ claims are analyzed

under a rational basis review.       The rational basis test asks “(1) whether the

government has the power or authority to regulate the particular area in question,

and (2) whether there is a rational relationship between the government’s objective

and the means it has chosen to achieve it.” Lieb, 558 F.3d at 1306. Plaintiffs

argue that the School District did not have rational basis for treating the two groups

of employees within the RIF’s “programs/functions eliminated” differently with

regard to which employees would be retained.

      However,     it   is   clear   that   under   Georgia   law,   “teachers”   and

“paraprofessionals” are treated differently. There are different educational and

background requirements for the positions and different protections once an

individual is in the position. For instance, teachers have a state-mandated salary

scale, are required to have an annual employment agreement, and have certain due

process rights if terminated. O.C.G.A. §§ 20-2-212, 20-2-211(b), & 20-2-942.

Georgia law defines a paraprofessional as “a person who may have less than

professional-level certification . . . and does a portion of the professional’s job or


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tasks under the supervision of the professional, and whose decision-making

authority is limited and regulated by the professional.” O.C.G.A. § 20-2-204(a)(1).

Paraprofessionals are not required to be issued an annual employment agreement,

have no state-mandated salary scale, and have no Fair Dismissal Act rights. As the

School District also notes, after the RIF, there were no more elementary

band/orchestra teaching positions for which Plaintiffs may have been retained,

whereas there were remaining elementary paraprofessional positions. Further, no

party disputes that each elementary music teacher position eliminated generated a

cost savings $68,536 for the School District; while each paraprofessional position

saved $27,246. There is also no dispute that the Fulton County School District

faced a $140 million budget shortfall which led to the implementation of the RIF.

      Based on these circumstances, a multitude of rational bases could be

adduced in support of the two groups’ differing treatment under the RIF. For

example, given that the elementary orchestra and band teachers must have an

annual employment agreement and have certain due process rights if terminated,

the School District court certainly have found it more efficient to eliminate this

group as a whole, without giving them the opportunity to be retained.

Paraprofessionals, on the other hand, do not need annual contracts and have no due

process rights if terminated, which suggests that rehiring them on an individualized

basis might be less involved. Plaintiffs do not rebut these differences.


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      Moreover, since paraprofessionals are supervised, the School District could

have found that their transition to other grades would be relatively easy.

Elementary orchestra and band teachers, however, as teachers, are not supervised

in the same way, and their transition to other kinds of music instruction, or

different grades, may not be as easy. Indeed, while Plaintiffs have said that they

are certified to teach Pre-K through 12th grade, no where have they mentioned that

they could actually easily teach in other positions. Because Plaintiffs have failed

to meet their burden of negating “every conceivable basis which might support”

the RIF’s classification, Beach Commc’ns, 508 U.S. at 315 (quotation omitted), the

district court did not err in rejecting their Equal Protection claim.

      We also are unpersuaded by Plaintiffs’ argument that the School District is

collaterally estopped from defending against Plaintiffs’ Equal Protection claims

due to the decision of the Fulton County Superior Court in Lee. Offensive, non-

mutual collateral estoppel is a doctrine under which a plaintiff asserts that a

defendant is barred from litigating an issue based on a decision rendered in a case

in which the plaintiff was not involved. See Parklane Hosiery Co. v. Shore, 

, 327-28 (1979). In Mendoza, 464 U.S. at 162, the United States Supreme

Court held that the federal government is not subject to offensive, non-mutual

collateral estoppel. We have extended Mendoza to hold that state governments are




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not subject to offensive, non-mutual collateral estoppel. Hercules Carriers, Inc. v.

Claimant State of Fla. Dep’t of Transp., 

, 1579 (11th Cir. 1985).

      In Mendoza, the Supreme Court reasoned that government litigation differs

significantly from private litigation, and those differences merit exemption from

the doctrine. 464 U.S. at 160. For instance, government litigation frequently

involves interpreting the Constitution -- a task often only achieved in government

litigation. Id. Stifling the litigation of constitutional issues with offensive, non-

mutual collateral estoppel would therefore prevent the development and

clarification of constitutional law. Id. In addition, the government has limited

litigation resources, which may dictate litigation strategy. Id. at 161. Further, the

government creates public policy through litigation, which may justify alternative

legal positions. Id. The Supreme Court also said that offensive, non-mutual

collateral estoppel would frustrate judicial economy because it would force

government to vigorously defend every claim to the point of exhaustion to avoid

the doctrine, creating more litigation than it alleviates. Id. at 163.

      We have likewise held that offensive, non-mutual collateral estoppel does

not apply against a state government for many of the same reasons. Hercules, 768

F.2d at 1579.       In so doing, we recognized the differences in litigation

considerations between the government and private litigants, as detailed by

Mendoza.     Id. at 1578.    Several district courts in this Circuit have similarly


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extended Mendoza and Hercules to bar offensive, non-mutual collateral estoppel

from applying to local government entities. Tugz Int’l, L.L.C. v. Canaveral Port

Auth., 

 (M.D. Fla. 2005); Petchem v. Canaveral Port Auth.,

 (M.D. Fla. 2005).

      In Tugz, the district court held that a captain, who wrecked a ship, could not

use the administrative law decision, regarding his pilot’s license, in litigation

against the local port authority. 

, at *7. In Petchem, the district

court applied Mendoza and Hercules, holding that “whatever differences there may

be between the litigation burdens faced by the Port Authority and the federal

government or the Port Authority and a state government, they are, in the main, a

matter of degree and not of kind.” Petchem, 

, at *3.1 The

Petchem court further noted that a local government agency, such as a port

authority, is likely to be more financially restricted than the federal or state

government, making application of the exclusion even more important. Id.

      We agree. In the case at hand, excluding a school district from offensive,

non-mutual collateral estoppel is based on the same reasoning in Hercules and

Mendoza. To begin with, a school district is a political subdivision of the State of


1
  In so holding, the court observed that: “there is no basis in this case for
concluding that the Port Authority is a state government in the sense contemplated
by the court in Hercules Carriers and certainly is, in no sense, the federal
government, there is no question that it is a governmental entity.” 

, at *3. The same is true here of the School District.
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Georgia. Greene County School Dist. v. Circle Y Const., Inc., 

,

185 n.2 (Ga. 2012) (noting that a local school system is a political subdivision of

the state); accord Thornton v. Clarke County School Dist., 

, 12 n.1

(Ga. 1999).      Additionally, the litigation at hand involves constitutional

interpretation; thus, applying offensive, non-mutual collateral estoppel would

hinder the court from developing and clarifying essential constitutional law. It is

also true that school districts must sometimes promote educational policy through

the courts, which may merit alternative interpretations of a law or case; thus,

offensive, non-mutual collateral estoppel would prevent the development of

educational policy through litigation.

      Most importantly, a school district has a limited litigation budget, much

more limited than the federal or state government. As a result, offensive, non-

mutual collateral estoppel would force the school district to spend more on

litigation because each claim would have to be utterly exhausted. Furthermore,

this kind of claim exhaustion would actually increase the overall litigation, thus

exhausting government resources, instead of promoting judicial economy as

estoppel is intended to do.

      Plaintiffs argue that offensive, non-mutual collateral estoppel should apply

here because unlike a federal or state government, a local government entity is not

subject to suit in a vast geographic area, the nature of litigation is more limited, and


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there is no U.S. Supreme Court certiorari process in place to resolve conflicts

amongst the courts. However, as the School District notes, a local government

entity may be sued outside of its geographical borders. For example, the School

District regularly contracts with vendors from across the country, sends students

and employees outside of its borders, and is regularly in situations in which

litigation outside of Fulton County could result. As for any difference between the

nature of the federal government’s litigation and of a local government agency’s

litigation, it is merely a matter of degree, not kind. Notably, this particular case

casts the School District as an employer, but the School District must wear

numerous litigation hats ranging from providing special education to local taxation

to procurement.     As a result, the School District, like the federal and state

governments, needs litigation flexibility, so, for example, they are not forced to

completely exhaust every administrative hearing, which wastes resources and

increases litigation. Finally, given all of the similarities between federal, state and

local governments highlighted above, the fact that there is no certiorari process to

resolve circuit splits on the local level does not demand application of offensive,

non-mutual collateral estoppel.

      AFFIRMED.




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