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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 18-11387
Non-Argument Calendar
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D.C. Docket No. 2:16-cv-01885-AKK
CRAIG D. LAWRENCE, SR., Ph.D.,
Plaintiff - Appellant,
versus
DR PERRY W WARD, President, in his official and individual capacities,
SHARON CREWS, Vice President for Administrative Services, in her official and
individual capacities,
LAWSON STATE COMMUNITY COLLEGE,
Defendants - Appellees.
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Appeal from the United States District Court
for the Northern District of Alabama
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(May 21, 2019)
Before TJOFLAT, MARCUS, and ROSENBAUM, Circuit Judges.
PER CURIAM:
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Craig D. Lawrence, Sr. sued Lawson State Community College (“Lawson
State”) and its president (the “President”) and one of its vice presidents (the “Vice
President”)—in both their official and individual capacities—for various civil-
rights violations. These claims include a failure-to-promote claim under Title VII
of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2(a)(1), the only claim that is at
issue here. The President named one of Lawrence’s black colleagues (the
“Colleague”) to the position of Associate Dean of the College of Career Technical
Education (“Associate Dean”), a move that Lawrence, who is white, argues was
racially discriminatory.
We affirm the District Court’s grant of summary judgment for Defendants
because Lawrence has failed to prove that Defendants’ reason for not promoting
him was pretextual, as is required under McDonnell Douglas. 1 Because we write
for the parties, we set out facts only as they are needed to support our analysis.
I.
Before turning to the merits, we address a potential jurisdictional bar under
the Eleventh Amendment. See U.S. Const. amend. XI. Defendants argued, and the
District Court agreed, that Lawrence’s suit against Lawson State was barred by the
Eleventh Amendment because Lawson State is an “arm of the state.” The Court
1
McDonnell Douglas Corp. v. Green,
411 U.S. 792,
93 S. Ct. 1817 (1973), holding
modified by Hazen Paper Co. v. Biggins,
507 U.S. 604,
113 S. Ct. 1701 (1993).
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also held that the suit against the President and the Vice President, in their official
capacities, was barred because they are “state officials.” On appeal, Lawrence
challenges only the Court’s holding that the President enjoys official-capacity
immunity. He argues that the President is a proper party under Ex parte Young2
because he seeks equitable, prospective relief—namely, instatement to the position
of Associate Dean.
We ultimately affirm the District Court’s grant of summary judgment for
Defendants on the merits. Under Steel Co. v. Citizens for a Better Environment,
523 U.S. 83,
118 S. Ct. 1003 (1998), however, “an assertion of Eleventh
Amendment immunity must be resolved before a court may address the merits of
the underlying claim(s).” Seaborn v. Florida,
143 F.3d 1405, 1407 (11th Cir.
1998). Usually.
In McClendon v. Georgia Department of Community Health,
261 F.3d 1252
(11th Cir. 2001), we proceeded straight to a defendant-friendly merits
determination because the defendants “insist[ed] upon [Eleventh Amendment
immunity] only if it [was] necessary to prevent judgment against them on the
merits.”
Id. at 1258. Unlike subject-matter jurisdiction, which cannot be waived,
the Eleventh Amendment presents a “rather peculiar kind of ‘jurisdictional’ issue”
that is waivable.
Id. at 1257 (quoting United States v. SCS Bus. & Tech. Institute,
2
Ex parte Young,
209 U.S. 123,
28 S. Ct. 441 (1908).
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Inc.,
173 F.3d 890, 892 (D.C. Cir. 1999)). The McClendon defendants offered
“two alternative bases for affirming the district court[]”—lack of jurisdiction under
the Eleventh Amendment and failure to state a claim upon which relief could be
granted.
Id. So too here.
Defendants argue that even if the Eleventh Amendment does not shield the
President, Lawrence’s argument is “moot” because Lawrence has “no substantive
basis for any remedy or relief, whether monetary or injunctive, as a matter of law.”
Like the McClendon defendants, Defendants here tell us that “either the Eleventh
Amendment or [Plaintiff’s] failure to state a claim is sufficient basis to affirm the
[D]istrict [C]ourt’s decision.”
Id. at 1258 (alterations omitted). With Defendants’
permission, then, we proceed to the merits.
II.
Under McDonnell Douglas, a plaintiff makes out a prima facie case of
discrimination case by establishing, by a preponderance of the evidence, that he
“(1) is a member of a protected class; (2) was qualified for the position; (3)
suffered an adverse employment action; and (4) was replaced by someone outside
the protected class or was treated less favorably than similarly situated individuals
outside the protected class.” Hornsby-Culpepper v. Ware,
906 F.3d 1302, 1312 n.7
(11th Cir. 2018). If the plaintiff establishes these elements, the burden of
production shifts to the defendant to present evidence of a “legitimate, non-
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discriminatory reason for the challenged action.”
Id. at 1312. If the defendant
does so, the burden shifts back to the plaintiff to prove—again, by a preponderance
of the evidence, that the proffered reason was a “mere pretext for discrimination.”
Id. 3
We review de novo a district court’s grant of summary judgment. Alvarez v.
Royal Atl. Developers, Inc.,
610 F.3d 1253, 1263 (11th Cir. 2010). Summary
judgment is appropriate when the record indicates “no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter of law.”
Fed. R. Civ. P. 56(a).
Because Lawrence concedes that Defendants have met their burden of
production at stage two of the McDonnell Douglas framework, we begin our
analysis there. We first outline Defendants’ non-discriminatory reason for
promoting the Colleague in lieu of him. We then analyze whether Lawrence has
met his burden of proving that the reason was a pretext for discrimination.
3
Alternatively, a plaintiff may present 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 1321, 1328 (11th Cir. 2011) (footnote omitted) (quoting
Silverman v. Bd. of Educ.,
637 F.3d 729, 734 (7th Cir. 2011), overruled by Ortiz v. Werner
Enters., Inc.,
834 F.3d 760 (7th Cir. 2016)).
Though on appeal Lawrence highlights some circumstantial evidence that the President
discriminated against him, he failed to present this evidence to the District Court. As such, he
has waived the argument. See Miccosukee Tribe of Indians of Fla. v. U.S. Army Corps of Eng’rs,
619 F.3d 1289, 1302 n.21 (11th Cir. 2010) (“We generally do not consider arguments raised for
the first time on appeal.”).
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A.
Defendants contend that the Colleague was promoted to Associate Dean
because (1) the position had long been vacant, (2) at the time of appointment, he
had already been performing the duties of that role, and (3) he was the only
supervisor at a certain level within the department. To assess Lawrence’s pretext
argument, we must first explain how the Colleague’s promotion came to pass.
The Uniform Guidelines for Compliance and Monitoring of Recruitment and
Selection at Alabama Community College System Institutions (the “Guidelines”)
detail how employment positions at Lawson State must be filled. The Guidelines
provide for a process known as “reorganization.” Under reorganization, a
community-college president may solicit the chancellor for postsecondary
education to reorganize an employee from one position to another. To do so, the
president submits a letter to the chancellor along with a form. On the form, the
president indicates the name of the proposed position for the employee, the name
of the employee to be appointed to that position, and the employee’s current
position. He must also justify the reorganization.
The President did just that. He submitted a letter and the form to the
chancellor requesting that the Colleague be reorganized from Assistant Dean of
Career Technical Education to Associate Dean of Career Technical Education.
The letter indicated that the Colleague “has unofficially handled the duties and
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responsibilities of the Associate Dean for a number of years.” On the form, the
President also indicated that the Associate Dean position had been vacant for
several years and that the Colleague was the “only Dean’s level supervisor in the
department.” The President’s request to reorganize the Colleague was approved by
the chancellor about a month later.
B.
Lawrence concedes that Defendants’ explanation is non-discriminatory but
asserts that it is nonetheless pretextual because it is logically unsound.
First, Lawrence argues that the proffered reason is pretextual because the
Colleague had chaired only one of several divisions of the College of Career
Technical Education. But nothing in the record indicates that chairing divisions is
central to the Associate Dean’s role. Rather, as indicated on the reorganization
form, the Associate Dean provides general leadership by (1) “planning,
recommending, and monitoring appropriate institutional budgets” and (2) “working
with faculty and staff to create a professional learning environment where faculty
and students are encouraged to excel.” Lawrence presents no evidence to suggest
otherwise.
Second, Lawrence argues that the reason is pretextual because although no
posting is required for a reorganization, Defendants posted the vacancy anyway.
As such, the logic runs, reorganization could not have been the real reason. But
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Lawrence’s premise is factually incorrect and stems from his failure to appreciate
that Defendants must jump through more hoops to comply with state law than to
comply with the Guidelines.
Under the Guidelines, the employee to be appointed must be selected before
the reorganization request can be submitted. Indeed, as already explained, the
reorganization form itself requires the college president to give a specific
employee’s name. A reorganization, then, does not anticipate a search for a
someone to fill the position; the person is pre-selected.
Under Alabama law, however, boards of education must post notices of
vacancy for certain positions. Ala. Code § 16-22-15. Under the plain text of the
statute, “[a]ll vacancies involving jobs which are supervisory, managerial, or
otherwise newly created positions shall nevertheless require posting notices of at
least 14 calendar days [before the positions are filled].” 4
Id. § 16-22-15(c)
(emphasis added).
The long and short of it is this: Nothing about the posting of a vacancy gives
rise to any inference that the reorganization was a cover-up for discrimination.
4
The “nevertheless” clause simply indicates that supervisory, managerial, or newly
created positions do not benefit from a shorter seven-day posting period for vacancies that arise
during the school year. See Ala. Code § 16-22-15(c).
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III.
For these reasons, the District Court’s grant of summary judgment for
Defendants is AFFIRMED.
SO ORDERED.
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