             Case: 18-11387   Date Filed: 05/21/2019   Page: 1 of 9


                                                           [DO NOT PUBLISH]



              IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT
                        ________________________

                              No. 18-11387
                          Non-Argument Calendar
                        ________________________

                    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.

                        ________________________

                 Appeal from the United States District Court
                    for the Northern District of Alabama
                        ________________________

                               (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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