In Wu v. Thomas, 996 F.2d 271 (11th Cir. 1993), the Eleventh Circuit considered whether a federal district judge should recuse from a case involving a university for which he serves as an adjunct professor and to which he had made financial contributions. See 996 F.2d at 275.
It has been imposed in cases under Title VII's retaliation clause, even though that provision is not limited to unlawful conduct with respect to the "terms, conditions, or privileges of employment." See Bass v. Board of County Comm'ns, 242 F.3d 996, ____ _ ___, slip op. at 1477-78 (11th Cir. 2001); Gupta v. Florida Bd. of Regents, 212 F.3d 571, 587 (11th Cir. 2000), cert. denied, ___ U.S. ___, 121 S.Ct. 772, 148 L.Ed.2d 671 (2001); Wideman v. Wal-Mart Stores, Inc., 141 F.3d 1453, 1456 (11th Cir. 1998); Wu v. Thomas, 996 F.2d 271, 273-74 (11th Cir. 1993). Adverse action is also a requirement in other employment discrimination cases.
Though the Fifth Circuit says little else on the issue, courts within other circuits have clarified that a judge need not recuse herself when her alma mater is a party, even when the judge makes yearly financial contributions to the university, presents educational programs to the university, teaches as an adjunct professor at the university, donates money to the university in exchange for football tickets, or even plans to create a university scholarship.Harris v. Bd. of Sup'rs of Louisiana State Univ. & Agr. & Mech. Coll. ex rel. LSU Health Sci. Ctr. Shreveport, 409 Fed. Appx. 725, 727 (5th Cir. 2010) (citing Levitt v. University of Texas at El Paso, 847 F.2d 221, 225-26 & n. 13 (5th Cir.1988); Lunde v. Helms, 29 F.3d 367, 370-71 (8th Cir.1994); Wu v. Thomas, 996 F.2d 271, 274-75 & n. 7 (11th Cir.1993)). Harris, 409 Fed. Appx. at 728.
Certainly, "every unkind act" will not be held to violate Title VII. Wu v. Thomas, 996 F.2d 271, 273-74 (11th Cir. 1993). It is clear that the actions taken by Webster โ denying her requests to take courses, requesting sexual favors, yelling at her, and telling her to find another job โ do not, independently or collectively, constitute a tangible employment action.
Clearly, if such were the case, this act would constitute an "adverse action." See Wu v. Thomas, 996 F.2d 271, 273-74 (11th Cir. 1993) (generally the "terms and conditions" of a plaintiff's employment are affected by a loss of salary, benefits or position). Here, however, the record is clear that the reduction in pay in Johnston's case was completely unrelated to any protected activity she engaged in.
The Eleventh Circuit has not conclusively determined whether or not harassment can constitute an adverse employment action. See Wu v. Thomas, 996 F.2d 271, 274 (11th Cir. 1993), cert. denied, 511 U.S. 1033, 114 S.Ct. 1543, 128 L.Ed.2d 195 (1994). The Wu court noted that although the Eleventh Circuit has interpreted Title VII to mean that an employer cannot retaliate by taking an "adverse employment action," that general phrase has never been defined.
Qualified Immunity as to ยง 1983 The defendants further assert that they are entitled to qualified immunity in this action, because Mr. Gorman is presently employed by the State of Alabama, he has lost no back pay, and he has suffered no tangible injury. The defendants rely on Wu v. Thomas, 996 F.2d 271, 273 (11th Cir. 1993), cert. denied, ___ U.S. ___, 114 S.Ct. 1543, 128 L.Ed.2d 195 (1994), in which the court could not find any case that clearly established that retaliatory harassment โ as opposed to sexual or racial harassment โ could violate Title VII where the employer caused the employee no tangible harm, such as loss of salary, benefits, or position. Id. at 273.
At the outset, the Court recognizes that, although ยง 704(a) specifically states that an employer cannot retaliate against protected employees, the statute does not make all hostile acts wrongful. Wu v. Thomas, 996 F.2d 271, 274 (11th Cir. 1993), cert. denied, ___ U.S. ___, 114 S.Ct. 1543, 128 L.Ed.2d 195 (1994). Moreover, while the Eleventh Circuit has interpreted the statutory language to mean that an employer cannot retaliate against an employee by making an "adverse employment decision," it has not defined what constitutes such an action.
We join our sister circuits in concluding that recusal is not required just because a judge serves as an adjunct professor at the law school of a party-university. See, e.g., Sessoms v. Trs. of Univ. of Penn., 739 Fed.Appx. 84, 90 (3d Cir. 2018) (concluding that the district court judge who served as an adjunct professor at the defendant university's law school did not abuse its discretion in declining to recuse in a case against the university); Roe v. St. Louis Univ., 746 F.3d 874, 887 (8th Cir. 2014) (affirming decision not to recuse in a case against the university where district judge was an alumnus of the undergraduate school and law school, taught at the law school, and made "positive comments about the school"); Wu v. Thomas, 996 F.2d 271, 275 (11th Cir. 1993) (holding that district judge's "status as an adjunct professor [at law school] and his past contributions to the [u]niversity" did not require recusal in a case against the university). The district court did not abuse its discretion by denying the motions for recusal on this basis.
We join our sister circuits in concluding that recusal is not required just because a judge serves as an adjunct professor at the law school of a party-university. See, e.g., Sessoms v. Trs. of Univ. of Penn., 739 F. App'x 84, 90 (3d Cir. 2018) (concluding that the district court judge who served as an adjunct professor at the defendant university's law school did not abuse its discretion in declining to recuse in a case against the university); Roe v. St. Louis Univ., 746 F.3d 874, 887 (8th Cir. 2014) (affirming decision not to recuse in a case against the university where district judge was an alumnus of the undergraduate school and law school, taught at the law school, and made "positive comments about the school"); Wu v. Thomas, 996 F.2d 271, 275 (11th Cir. 1993) (holding that district judge's "status as an adjunct professor [at law school] and his past contributions to the [u]niversity" did not require recusal in a case against the university). The district court did not abuse its discretion by denying the motions for recusal on this basis.