Altha Harrell v. State of Alabama ( 2009 )


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  •                                                            [DO NOT PUBLISH]
    
    
                  IN THE UNITED STATES COURT OF APPEALS
    
                           FOR THE ELEVENTH CIRCUIT
                             ________________________                 FILED
                                                             U.S. COURT OF APPEALS
                                   No. 08-15860                ELEVENTH CIRCUIT
                                                                   JUNE 1, 2009
                               Non-Argument Calendar
                                                                THOMAS K. KAHN
                             ________________________
                                                                     CLERK
    
                        D. C. Docket No. 07-00524-CV-JHH-S
    
    ALTHA HARRELL,
    
                                                                  Plaintiff-Appellant,
    
                                        versus
    
    STATE OF ALABAMA DEPARTMENT OF EDUCATION,
    JOSEPH B. MORTON, in his individual capacity and
    official capacities as State Superintendent of Education,
    TOMMY B. WARREN, in his individual capacity and
    official capacities as Director of the State of Alabama
    Department of Education,
    ALABAMA STATE PERSONNEL DEPARTMENT,
    JACKIE B. GRAHAM, in her individual and official capacities
    as State Personnel Director,
    
                                                              Defendants-Appellees.
    
    
                             ________________________
    
                      Appeal from the United States District Court
                         for the Northern District of Alabama
                            _________________________
    
                                  (June 1, 2009)
    Before DUBINA, Chief Judge, WILSON and PRYOR, Circuit Judges.
    
    PER CURIAM:
    
           Appellant Altha Harrell appeals the district court’s grant of summary
    
    judgment in favor of two Alabama entities – the State of Alabama Department of
    
    Education and the Alabama State Personnel Department – and three state officials
    
    – Tommy B. Warren, the Director of the State of Alabama Department of
    
    Education, Joseph B. Morton, the State Superintendent of Education, and Jackie B.
    
    Graham – in their respective individual and official capacities on her claims of
    
    racial discrimination and retaliation raised pursuant to 42 U.S.C. §§ 1981 and
    
    1983. Harrell, a black female, filed a complaint which alleged that the defendants
    
    failed to promote her to a Supervisor position because of her race.1
    
           Harrell argues on appeal that because she presented triable issues of fact
    
    regarding pretext, summary judgment was inappropriate. Specifically, she contends
    
    that Warren and Morton’s reasons for promoting two white females (Lindsey and
    
    Vaughan) over her – higher annual performance scores and better performances
    
    during interviews – were pretextual because: (1) she was better qualified for the
    
           1
              Because Harrell does not set forth any arguments for her retaliation claim or challenge
    the district court’s grant of summary judgment to the two Alabama entities – the State of
    Alabama Department of Education and the Alabama State Personnel Department – or to the
    three state officials – Warren, Morton, and Graham – in their respective official capacities as
    well as Graham in her individual capacity, we conclude that she has abandoned those issues.
    Mathews v. Crosby, 
    480 F.3d 1265
    , 1268 n.3 (11th Cir. 2007), cert. denied, 
    128 S. Ct. 865
    (2008).
    
                                                     2
    position than Lindsey and Vaughan; (2) Warren inappropriately considered
    
    Lindsey and Vaughan’s experience as assistant supervisors, a title not recognized
    
    by the State Personnel Department; and (3) Warren could not rely on better
    
    performance scores for a reason to recommend Lindsey and Vaughan because he
    
    admitted he was not aware of the scores when he recommended Lindsey and
    
    Vaughan for Supervisor.
    
          We review a district court’s grant of summary judgment de novo, viewing all
    
    evidence, and drawing all reasonable inferences, in favor of the non-moving party.
    
    Vessels v. Atlanta Indep. Sch. Sys., 
    408 F.3d 763
    , 767 (11th Cir. 2005). Summary
    
    judgment is appropriate when the record shows that “there is no genuine issue as to
    
    any material fact, and the moving party is entitled to judgment as a matter of law.”
    
    Id. (citing Fed.R.Civ.P. 56(c)). “The mere existence of a scintilla of evidence in
    
    support of the plaintiff’s position will be insufficient; there must be evidence on
    
    which the jury could reasonably find for the plaintiff.” Anderson v. Liberty Lobby,
    
    Inc., 
    477 U.S. 242
    , 252, 
    106 S. Ct. 2505
    , 2512, 
    91 L. Ed. 2d 202
     (1986).
    
          Where, as here, an employee attempts to prove discriminatory intent by
    
    circumstantial evidence, the claims are subject to the McDonnell-Douglas Corp. v.
    
    Green, 
    411 U.S. 792
    , 802, 
    93 S. Ct. 1817
    , 1824, 
    36 L. Ed. 2d 668
     (1973), methods
    
    of proof. Richardson v. Leeds Police Dep’t, 
    71 F.3d 801
    , 805 (11th Cir. 1995).
    
    
    
                                               3
    Once the plaintiff has made out the elements of the prima facie case, and the
    
    employer has articulated a non-discriminatory basis for its employment action, the
    
    plaintiff must show that the proffered reasons were pretextual. Vessels, 408 F.3d at
    
    767-68. (internal citations omitted). Specifically, to survive summary judgment,
    
    the employee must come forward with evidence sufficient to permit a reasonable
    
    fact finder to conclude that the legitimate reasons given by the employer were not
    
    its true reasons, but were a pretext for discrimination. Chapman v. AI Transp., 
    229 F.3d 1012
    , 1024 (11th Cir. 2000) (en banc).
    
          In a failure to promote case, a “plaintiff cannot prove pretext by simply
    
    arguing or even by showing that he was better qualified than the [employee] who
    
    received the position [s]he coveted. A plaintiff must show not merely that the
    
    defendant’s employment decisions were mistaken but that they were in fact
    
    motivated by race.” Alexander v. Fulton County, 
    207 F.3d 1303
    , 1339 (11th Cir.
    
    2000) (internal quotations omitted). We have explained, “a plaintiff may not
    
    establish that an employer’s proffered reason is pretextual merely by questioning
    
    the wisdom of the employer’s reasons.” Combs v. Plantation Patterns, 
    106 F.3d 1519
    , 1543 (11th Cir. 1997). “Provided that the proffered reason is one that might
    
    motivate a reasonable employer, an employee must meet that reason head on and
    
    rebut it.” Chapman, 229 F.3d at 1030. A plaintiff must show that the disparities
    
    
    
                                              4
    between the successful applicant’s and her 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 . . . .” Cooper
    
    v. Southern Co., 
    390 F.3d 695
    , 732 (11th Cir. 2004); see also Ash v. Tyson Foods,
    
    Inc., 
    546 U.S. 454
    , 456-57, 
    126 S. Ct. 1195
    , 1197, 
    163 L. Ed. 2d
    . 1053 (2006)
    
    (approving of this language in Cooper).
    
          The record here demonstrates that Harrell failed to show that no reasonable
    
    person would have chosen to promote Lindsey and Vaughan to Supervisor over
    
    her. Harrell did not rebut Warren and Morton’s assertion that Lindsey and
    
    Vaughan had higher annual performance scores than she did. While Harrell
    
    contends Warren was not aware of the performance scores at the time he made his
    
    decision, Warren’s deposition testimony indicates that, while he was not aware of
    
    the specific scores, he was aware Lindsey and Vaughan had higher annual
    
    performance scores. Harrell likewise failed to rebut Warren and Morton’s
    
    contention that Lindsey and Vaughan’s performance in the interview was superior.
    
    Even if Harrell’s contention that Warren inappropriately relied on Lindsey and
    
    Vaughan’s experience as assistant supervisors is true, it is only a mere scintilla of
    
    evidence, as she failed to rebut head on Warren and Morton’s reasons for not
    
    promoting her. Instead, Harrell simply quarrels with Warren and Morton’s decision
    
    
    
                                               5
    to promote Lindsey and Vaughan over her. Consequently, Harrell failed to raise a
    
    genuine issue of fact as to whether Warren and Morton’s proffered reasons for
    
    failing to promote her were pretextual. Accordingly, we affirm the district court’s
    
    grant of summary judgment in favor of the employer.2
    
           AFFIRMED.
    
    
    
    
           2
            Because we hold that Harrell failed to raise a genuine issue of fact as to whether Warren
    and Morton’s proffered reasons for failing to promote her were pretextual, we do not need to
    decide whether Warren and Morton are entitled to qualified immunity.
    
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