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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 20-10763
Non-Argument Calendar
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D.C. Docket No. 2:18-cv-00697-GMB
MICHAEL F. EARLE,
CARLA EVANS,
Plaintiffs - Appellants,
versus
BIRMINGHAM BOARD OF EDUCATION, THE,
LISA HERRING, ED.D,
in her official and individual capacity as Superintendent
of the Birmingham City Schools,
Defendants - Appellees.
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Appeal from the United States District Court
for the Northern District of Alabama
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(January 19, 2021)
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Before WILSON, NEWSOM, and ANDERSON, Circuit Judges.
PER CURIAM:
Michael Earle and Carla Evans, jointly represented by counsel, appeal the
grant of summary judgment in favor of their employer, the Birmingham Board of
Education (Board).1
I.
Earle and Evans are Security Officers for the Board. They brought suit in
2018, claiming that the Board discriminated against them by paying them more
than $10,000 a year less than fellow Security Officer Keiff Smith, in violation of
Title VII,
42 U.S.C. § 1983, and
42 U.S.C. § 1981. Smith is an African American
male; Earle is a white male and Evans is a white female. Earle and Evans alleged
that they were discriminated against because of their race and that the Board’s
motivation for paying Smith more was intentional discrimination. Evans also
alleged that she was discriminated against because of her gender.
The parties consented to having a magistrate judge preside over their case
and enter a final judgment in accordance with
28 U.S.C. § 636(c). After discovery,
1
Earle and Evans also named Lisa Herring, Superintendent of Birmingham City Schools, as a
defendant in their amended complaint. The magistrate judge granted summary judgment to
Herring, in addition to the Board. However, Earle and Evans challenged only the ruling as to the
Board in their initial brief on appeal. While they challenged the ruling as to Herring in their reply
brief, the claim is deemed abandoned. See Sapuppo v. Allstate Floridian Ins. Co.,
739 F.3d 678,
680–81 (11th Cir. 2014) (discussing abandonment); United States v. Levy,
379 F.3d 1241, 1244
(11th Cir. 2004) (per curiam) (applying rule to issues raised for the first time in a reply brief).
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the Board moved for summary judgment, arguing that Earle and Evans had failed
to make a prima facie case of discrimination because they were not similarly
situated to their alleged comparator (Smith). Earle and Evans opposed the motion,
arguing that they were similarly situated to Smith because they did the “exact same
job.” They alleged that Smith was only paid more because of “an African
American power structure that ensured that Smith . . . received considerably more
compensation,” and not because of any alleged oversight by the Board. The Board
replied that Earle and Evans had failed to demonstrate that their proffered
explanation was pretextual.
The magistrate judge granted summary judgment to the Board. Specifically,
the judge found that Smith was not a proper comparator because he had a different
employment history and was subject to different employment policies. As a result,
Earle and Evans had not established a prima facie case of discrimination. In a
footnote, the judge noted that even if Earle and Evans had established a prima facie
case, the Board articulated a legitimate, non-discriminatory reason for the pay
disparity and Earle and Evans showed no evidence that the proffered reason—an
administrative oversight—was pretextual. Earle and Evans appealed.
On appeal, they argue that the magistrate judge erred in granting summary
judgment to the Board because 1) they did establish a prima facie case of race and
gender-based discrimination by using a similarly situated comparator, and 2) the
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Board’s reason for paying the similarly situated comparator a higher salary was
pretextual.
II.
We review de novo a lower court’s grant of summary judgment. Alvarez v.
Royal Atl. Developers, Inc.,
610 F.3d 1253, 1263 (11th Cir. 2010). Summary
judgment is appropriate “if the movant shows that there is 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). In determining whether the movant has met this burden, courts
must view the evidence in the light most favorable to the non-movant. Alvarez,
610
F.3d at 1263–64. Courts “may not weigh conflicting evidence or make credibility
determinations of [their] own.” Furcron v. Mail Ctrs. Plus, LLC,
843 F.3d 1295,
1304 (11th Cir. 2016). When a movant has shown that no genuine dispute of
material fact exists, the burden shifts to the non-movant to demonstrate that there is
a genuine issue of material fact that precludes summary judgment. Clark v. Coats
& Clark, Inc.,
929 F.2d 604, 608 (11th Cir. 1991).
III.
Title VII precludes employers from intentionally discriminating against an
employee with respect to his or her compensation “because of” his or her race or
sex. 42 U.S.C. § 2000e-2(a)(1). Likewise, under
42 U.S.C. § 1981, an employee
has a right to be free of discrimination by an employer based on race in the
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performance of a contract.
42 U.S.C. § 1981(a),(c). Moreover, under § 1983,
officials acting under color of state law are prohibited from depriving another of
their constitutional rights.
42 U.S.C. § 1983. Claims brought under Title VII and
42 U.S.C. §§ 1981, 1983 each require proof of discriminatory intent and are
subject to the same analytical framework. See Bryant v. Jones,
575 F.3d 1281,
1296 n.20 (11th Cir. 2009).
Where the plaintiff supports her Title VII claim with circumstantial
evidence, courts generally apply the McDonnell Douglas burden-shifting
framework. Lewis v. City of Union City, Ga.,
918 F.3d 1213, 1220–21 (11th Cir.
2019) (en banc). The plaintiff bears the initial burden of presenting evidence
sufficient to establish a prima facie case of discrimination. McDonnell Douglas
Corp. v. Green,
411 U.S. 792, 802 (1973).
A prima facie discrimination claim under Title VII generally requires a
plaintiff to show that: (1) he or she is a member of a protected class; (2) he or she
was subjected to an adverse employment action; (3) he or she was qualified for the
job; and (4) the employer treated similarly situated employees outside the protected
class more favorably. Lewis, 918 F.3d at 1220–21.
To meet the fourth prong, a comparator must be “similarly situated in all
material respects,” meaning that the plaintiff and comparators are “sufficiently
similar, in an objective sense, that they cannot reasonably be distinguished.” Id. at
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1218, 1228 (quotation marks omitted). Although this standard requires a case-by-
case analysis and formal labels regarding job title are unnecessary, a similarly
situated comparator will ordinarily (1) have engaged in the same basic conduct as
the plaintiff; (2) have been subject to the same employment policy, guideline, or
rule as the plaintiff; (3) have been under the jurisdiction of the same supervisor as
the plaintiff; (4) and share the plaintiff’s employment history. Id. at 1227–28.
These considerations give employers “necessary breathing space to make
appropriate business judgments.” Id. at 1228. A plaintiff’s failure to produce
evidence showing that a single similarly situated employee was treated more
favorably will preclude the establishment of a prima facie case. Id. at 1224.
If the plaintiff establishes a prima facie case, the burden shifts to the
employer to articulate a legitimate, non-discriminatory reason for its action.
McDonnell Douglas,
411 U.S. at 802. If the employer does so, the plaintiff must
show that the defendant’s reason was pretextual.
Id. at 804.
IV.
Here, the magistrate judge did not err in granting summary judgment to the
Board. Earle and Evans failed to establish a prima facie case of race or sex-based
discrimination because they did not point to a similarly situated comparator. 2 As a
2
Because we hold that Earle and Evans failed to state a prima facie case, we need not consider
their pretext arguments.
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result, the magistrate judge correctly determined that there was no genuine issue of
material fact and we affirm its grant of summary judgment in favor of the Board.
Earle and Evans could not show that the Board treated any similarly situated
employee—in this case, Smith—more favorably, because Smith was not a proper
comparator. See Lewis, 918 F.3d at 1228. Smith was not “similarly situated in all
material respects” to Earle or Evans. See id. at 1218. He differed from them in two
material respects. See id. at 1227–28.
First, his employment history differed from theirs. While Earle and Evans
both spent their entire tenure with the Board as Security Officers, Smith was
transferred multiple times and spent four years serving as an Attendance Officer—
a higher paid position.
Second, Smith was subject to materially different policies than Earle and
Evans. When Smith returned to the lower paying Security Officer position in 2007,
the Board had a policy in effect that allowed employees to retain their higher
salaries if they were transferred to a lower-paying position. Accordingly, Smith
was paid more than other Security Officers, including Earle and Evans. The three
employees were not subject to the same pay policy until 2013, when the State
mandated that all salaries be realigned.3
3
In 2012, the State Board of Education intervened in the Board’s financial operations. One of the
measures imposed by the State in 2013 was a formal mandate that all salaries be aligned to
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While Smith’s salary was eventually reduced, Earle and Evans point out in
their briefs that the required reduction in Smith’s salary was delayed by years. The
Board explained that the salary overhaul had been a large undertaking, involving
the review and change of thousands of employees’ salaries and, inadvertently,
some people like Smith were missed in the process.4 After a legal challenge by
Smith that further delayed his salary change, his salary was reduced to the correct,
lower pay grade in 2018.
Earle and Evans were not similarly situated to Smith in all material respects
because of their different employment histories and the different policies they were
subject to. Accordingly, their disparate treatment was not discrimination—it
involved treating different things differently, not the same things differently. See
Lewis, 918 F.3d at 1225.
Earle and Evans did not make out a prima facie case of either race or sex-
based discrimination as a matter of law. Accordingly, we affirm the lower court’s
grant of summary judgment.
AFFIRMED.
conform to the salary schedule applicable to the duties currently being performed by
employees—regardless of policies that had previously been in effect.
4
Of the eighteen employees missed in the initial review and salary change, thirteen were African
American, four were white, and one was Pacific Islander.
8
