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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 18-11386
Non-Argument Calendar
________________________
D.C. Docket No. 2:15-cv-02169-MHH
SHARON D. MARTIN,
Plaintiff-Appellant,
versus
SHELBY COUNTY BOARD OF EDUCATION,
AUBREY MILLER,
President of the Board of Education in his official and
individual capacity,
PEG HILL, Vice President of the Board of Education in her official
and individual capacity,
JIMMY BICE, Member of the Board of Education in his official and
individual capacity,
JANE HAMPTON, Member of the Board of Education in her official
and individual capacity,
KEVIN MORRIS, Member of the Board of Education in his official and
individual capacity, et al.,
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Northern District of Alabama
________________________
(November 27, 2018)
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Before MARCUS, WILSON and HULL, Circuit Judges.
PER CURIAM:
Sharon Martin appeals from the district court’s grant of summary judgment
in favor of the Shelby County Board of Education (“Board”) in her race
discrimination law suit brought under Title VII and 42 U.S.C. § 1983 against
certain Board members in their official and individual capacities. Her complaint
alleged that the Board intentionally discriminated against her on the basis of her
race when it promoted Karenann George, a less qualified, white candidate, for the
position of registrar/data manager at Vincent Middle/High School, instead of her.
On appeal, Martin says that the district court erred in granting summary judgment
against her because: (1) she rebutted the Board’s proffered non-discriminatory
reasons for not promoting her, showing them to be pretextual; (2) she properly
made out a mixed-motive claim; and (3) she properly sued the Board members in
their official and individual capacities. After careful review, we affirm.
We review de novo a summary judgment determination, viewing all
evidence in the light most favorable to the non-moving party. Owen v. I.C. Sys.,
Inc.,
629 F.3d 1263, 1270 (11th Cir. 2011). The party moving for summary
judgment bears the initial burden of establishing the absence of a dispute over a
material fact. Celotex Corp. v. Catrett,
477 U.S. 317, 323 (1986). The burden then
shifts to the non-moving party, who may not rest upon mere allegations, but must
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set forth specific facts showing that there is a genuine issue for trial. Fed. R. Civ.
P. 56(e); Eberhardt v. Waters,
901 F.2d 1578, 1580 (11th Cir. 1990).
First, we are unpersuaded by Martin’s argument that the Board’s proffered
non-discriminatory reasons for not promoting her were pretextual, and, thus, that
the district court erred in granting summary judgment on her Title VII claim. Title
VII prohibits employers from discriminating “against any individual with respect
to [her] compensation, terms, conditions, or privileges of employment, because of
[her] race.” 42 U.S.C. § 2000e–2(a)(1). In a failure-to-promote scenario, a plaintiff
may establish a prima facie case of discrimination by showing that: (1) she was a
member of a protected class; (2) she applied and was qualified for a position for
which the employer was accepting applications; (3) despite her qualifications, she
was not promoted; and (4) the position remained open or was filled by another
person outside of her protected class. Trask v. Sec’y, Dept. of Vet. Affairs,
822
F.3d 1179, 1191 (11th Cir. 2016). If a prima facie case is presented, the burden
shifts to the defendant to articulate a race-neutral basis for the employment action
at issue; if the defendant carries this light burden, the burden returns to the plaintiff
to prove the defendant’s stated reason for its conduct is pretext for discrimination.
See Flowers v. Troup Cty., Ga. Sch. Dist.,
803 F.3d 1327, 1336 (11th Cir. 2015).
A plaintiff can show pretext either by offering evidence that the employer
more likely than not acted with a discriminatory motive, or that its proffered
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reasons are not credible. Alvarez v. Royal Atl. Developers, Inc.,
610 F.3d 1253,
1265 (11th Cir. 2010). To do so, the plaintiff must demonstrate “such weaknesses,
implausibilities, inconsistencies, incoherencies, or contradictions in the employer’s
proffered legitimate reasons for its action that a reasonable factfinder could find
them unworthy of credence.”
Id. (quotation omitted). A plaintiff usually cannot
prove pretext merely by showing that she was more qualified than the person hired.
Springer v. Convergys Customer Mgmt. Grp. Inc.,
509 F.3d 1344, 1349 (11th Cir.
2007). “[A] plaintiff must show that the disparities between the successful
applicant’s and h[er] own qualifications were of such weight and significance that
no reasonable person, in the exercise of impartial judgment, could have chosen the
candidate selected over the plaintiff.”
Id. That’s because a court does not “sit as a
super-personnel department.” Chapman v. A1 Transp.,
229 F.3d 1012, 1030 (11th
Cir. 2000) (en banc) (quotation omitted). To be clear, a reason is not pretext
“unless it is shown both that the reason was false, and that discrimination was the
real reason.” Brooks v. Cnty. Comm’n of Jefferson Cnty., Ala.,
446 F.3d 1160,
1163 (11th Cir. 2006) (quotation omitted; emphases in original).
As an alternative to the burden-shifting framework, a plaintiff may show that
the evidence, viewed in the light most favorable to her, “presents a convincing
mosaic of circumstantial evidence that would allow a jury to infer intentional
discrimination by the decisionmaker.” Smith v. Lockheed Martin Corp.,
644 F.3d
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1321, 1328 (11th Cir. 2011) (footnote omitted). Either way, if the circumstantial
evidence is sufficient to raise a reasonable inference that the employer
discriminated against the plaintiff, summary judgment is improper. Chapter 7 Tr.
v. Gate Gourmet, Inc.,
683 F.3d 1249, 1256 (11th Cir. 2012). In all cases, a
plaintiff retains the ultimate burden of persuading the court that she has been the
victim of intentional discrimination.
Flowers, 803 F.3d at 1336.
Here, the district court did not err in holding that Martin had not raised a
genuine issue of material fact about pretext. As the record reveals, the Board
provided a race-neutral reason for its decision to hire George, a Caucasian, for the
registrar/data manager position instead of Martin -- the interviewers decided that
they wanted someone with excellent people skills and a customer service mindset,
and the “consensus among the [interviewers] was that Ms. George would have
done the best job and was the best choice.” The undisputed record also indicates
that the Board asked all the candidates for the position the same questions, made
notes of their answers, did not use numerical ratings, and, that the panel members
looked favorably on George’s prior experience as a substitute in the front office, as
well as George’s demonstrated organizational skills and ability to multitask.
To establish that the Board’s stated reason for its conduct was pretext for
discrimination, Martin primarily relies on evidence comparing her qualifications
relative to George, the panel’s focus on criteria not emphasized in the registrar job
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description, and the interview panel’s decision to scrap a numerical rating system
that was provided on the interview forms, and instead to use “a whole
comprehensive approach” to score the candidates. Under the comprehensive
approach, the panel discussed each candidate’s strengths and weaknesses, any
personal knowledge the interviewers had of the candidate, and the overall
impression of the candidate after each candidate’s interview.
While “[a]n employer’s deviation from its own standard procedures may
serve as evidence of pretext,” Hurlbert v. St. Mary’s Health Care System, Inc.,
439
F.3d 1286, 1299 (11th Cir. 2006), “[i]t is difficult to hold that a practice which
affects applicants of all races in the same manner is actually designed to conceal a
racially discriminatory motive,” Brown v. American Honda Motor Co.,
939 F.2d
946, 952 (11th Cir. 1991). The record shows that the comprehensive approach was
used equally on all of the candidates, and that Sandra Gibson, a Caucasian
candidate with similar or even superior qualifications to Martin, was equally
disadvantaged by the behavior of the Board’s interview panel.
Brown, 939 F.2d at
952. Martin had worked for Vincent Middle/High School around 16 years, had
extensive data entry experience, and was very familiar with the INOW software
used by the registrar; similarly, Gibson also had worked at the school for 16 years,
had extensive data entry skills and was familiar with the INOW software.
Nevertheless, none of the panelists ranked either Gibson or Martin in their top two.
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Further, the interview panel’s decision not to consider whether the candidates
provided answers during the interview similar to the suggested answers also
affected Gibson in the same way that it affected Martin. Because applicants of all
races -- and specifically both a white and black candidate -- were affected in the
same manner by the panel’s choices during the interview process, we cannot say
that this evidence creates a genuine issue of fact about whether the panel’s process
was “actually designed to conceal a racially discriminatory motive.”
Id.
Martin claims that the district court misapplied Brown, but we disagree. In
Brown, we determined that a plaintiff had failed to show pretext where the
defendant’s deviation from its manual affected two white candidates in the exact
same way that it affected the plaintiff, who was black.
Id. We noted that although
“Honda’s expressed preference for existing dealers did not appear in the manual,
Honda did demonstrate that 10 of the last 13 new sites were filled with existing
dealers.”
Id. But Brown did not conclude that a practice had to be consistent with
unwritten policy if it were to be discounted as evidence of pretext. We said that
adherence to customary practices, even if unwritten, reinforces the notion that an
apparent deviation is not discriminatory; we never said, however, that the practice
would otherwise be pretextual.
Id.
Nor do the remaining “inconsistencies” that Martin points to support the
claim that she created a genuine issue of fact about whether she was discriminated
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against on the basis of race. For example, Martin notes that an interview panel
member could not remember specific details about George’s interview and failed
to copy his second choice on an e-mail telling the candidates he was deliberating
over whom he should recommend. While this evidence may suggest that the
interviewer made mistakes, it shows little else, and nothing about discriminatory
intent; Martin also mischaracterizes some of this evidence. As for her arguments
based on George’s lesser qualifications and on the defendant’s shifting reason for
hiring George -- first, her technical skills, and later, her people skills -- again, those
inconsistencies affected Gibson in the same way as Martin.
Id.
Martin adds that an interview panel member expressed concern that Martin
might be “intimidating,” and, we acknowledge that seemingly benign words may
be evidence of discriminatory intent in certain contexts. See Ash v. Tyson Foods,
Inc.,
546 U.S. 454, 456 (2006). However, that interviewer explained that Martin
came across as “very monotone and flat,” like another candidate who was white.
Martin has not given us any evidence suggesting that the “context, inflection, tone
of voice, local custom, and historical usage” of the interview’s words were not
benign, and we cannot say that they were infected with any racial animosity.
Id.
As for Martin’s testimony that the Board historically has not hired African-
Americans in support staff positions in the front office at Vincent Middle High
School, this assertion standing alone does not establish that the Board’s decision to
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hire George was racially motivated. As we’ve said, while statistics can be helpful
in showing pretext, data “without an analytic foundation, are virtually
meaningless.”
Brown, 939 F.2d at 952. Martin did not provide evidence about the
number of front office support staff vacancies at Vincent Middle High School or
the race of the individuals who applied for the positions.
On this record, we simply cannot say that Marin has raised a genuine issue
of fact that the Board’s proffered reason for not promoting her was both “false, and
that discrimination was the real reason.”
Brooks, 446 F.3d at 1163 (quotation
omitted; emphasis in original). Accordingly, the district court did not err in
concluding that Martin had failed to show a question of discriminatory intent.
We also find no merit to Martin’s argument that the district court erred in
granting summary judgment against her on her mixed-motive claim. In order to
survive summary judgment on a mixed-motive claim, a plaintiff must show that:
(1) the defendant took an adverse employment action against the plaintiff; and (2) a
protected characteristic was a motivating factor for the defendant’s adverse
employment action. Quigg v. Thomas Cty. Sch. Dist.,
814 F.3d 1227, 1239 (11th
Cir. 2016). “In other words, the court must determine whether the plaintiff has
presented sufficient evidence for a reasonable jury to conclude, by a preponderance
of the evidence, that [her protected characteristic] was a motivating factor for [an]
adverse employment decision.”
Id. (quotation omitted).
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Here, as we’ve already explained, none of the circumstantial evidence
Martin has presented, taken separately or together, shows by a preponderance that
the Board’s decision to hire George over Martin was the result of racial bias.
Id.
Thus, the district court did not err by awarding summary judgment to the Board.
Finally, we find no merit to Martin’s claim that she properly sued the Board
members in their official and individual capacities. “[W]hen an officer is sued
under Section 1983 in his or her official capacity, the suit is simply another way of
pleading an action against an entity of which an officer is an agent.” Busby v. City
of Orlando,
931 F.2d 764, 776 (11th Cir. 1991) (quotation and footnote omitted).
The analysis of a disparate treatment claim is the same whether that claim is
brought under Title VII, § 1981 or § 1983. Rice–Lamar v. City of Ft. Lauderdale,
Fla.,
232 F.3d 836, 843 n.11 (11th Cir. 2000).
The Equal Protection Clause ensures a right to be free from intentional
discrimination based upon race. Williams v. Consolidated City of Jacksonville,
341 F.3d 1261, 1268 (11th Cir. 2003). To establish a § 1983 equal protection race
discrimination claim, a plaintiff “must prove discriminatory motive or purpose.”
Cross v. State of Ala., State Dep’t of Mental Health & Mental Retardation,
49 F.3d
1490, 1507 (11th Cir. 1995). Further, to establish § 1983 liability, a plaintiff must
show proof of an affirmative causal connection between a government actor’s acts
or omissions and the alleged constitutional violation, which may be established by
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proving that the official was personally involved in the acts that resulted in the
constitutional deprivation. Brown v. City of Huntsville, Ala.,
608 F.3d 724, 737
(11th Cir. 2010).
When a claim involves an adverse employment action that occurs based on a
biased recommendation by a party without decision-making authority, a plaintiff
can establish liability under the “cat’s paw” theory. See Stimpson v. City of
Tuscaloosa,
186 F.3d 1328, 1331-32 (11th Cir. 1999). Under that theory, if the
decision-making party followed the biased recommendation without independently
investigating the complaint -- essentially acting as a rubber stamp of the biased
recommendation -- then the recommender’s discriminatory animus is imputed to
the decision-maker. See
id.
Once again, as we’ve held, Martin has not presented evidence creating
triable issues of fact with respect to her Title VII claim against the Board.
Consequently, the defendants, in their official capacities, were entitled to summary
judgment on Martin’s § 1983 claim.
Rice–Lamar, 232 F.3d at 843 n.11. Further,
the Board members were also entitled to summary judgment on Martin’s claim in
their individual capacities because Martin has not shown discriminatory motive on
the part of the Board’s individual members in accepting the interview panel’s
recommendation to hire George. Indeed, the uncontroverted record reflects that
the Board was never provided information on the candidates’ race at all. Thus,
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even if Martin had been deprived of a constitutional right, she has not shown that
the Board members, in their individual capacities, were personally involved in the
acts that resulted in the constitutional deprivation. City of Huntsville,
Ala., 608
F.3d at 737. Finally, Martin has not shown that the panel was influenced by racial
bias, and there is, therefore, nothing to impute to the Board itself.
Stimpson, 186
F.3d at 1331-32. Accordingly, we affirm.
AFFIRMED.
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