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                                                                        [DO NOT PUBLISH]

                  IN THE UNITED STATES COURT OF APPEALS

                            FOR THE ELEVENTH CIRCUIT
                             _________________________

                                     No. 17-11813
                              _________________________

                          D.C. Docket No. 2:13-cv-00934-DAB



GWENDOLYN MCCURDY,

                                                                           Plaintiff-Appellant,
                                             versus

STATE OF ALABAMA DISABILITY DETERMINATION SERVICE,

                                                                         Defendant-Appellee.

                              _________________________

                      Appeal from the United States District Court
                          for the Middle District of Alabama
                            _________________________

                                      (October 23, 2018)

Before WILLIAM PRYOR and MARTIN, Circuit Judges, and VRATIL, ∗ District
Judge.

VRATIL, District Judge:



       ∗
         Honorable Kathryn H. Vratil, United States District Judge for the District of Kansas,
sitting by designation.
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       Gwendolyn McCurdy sued the State of Alabama Disability Determination

Service (“DDS”) for race discrimination in promotions and termination of

employment in violation of 42 U.S.C. § 1981 and Title VII of the Civil Rights Act

of 1964 (“Title VII”), 42 U.S.C. § 2000e et seq.1 The District Court granted

summary judgment to DDS. McCurdy appeals that order, along with its denial of

her motion to strike the supporting affidavit of Norman Ippolito. After careful

review, and with the benefit of oral argument, we affirm.

                               I. STANDARD OF REVIEW

       We review a grant of summary judgment de novo, applying the same legal

standards as the District Court. Alvarez v. Royal Atl. Developers, Inc., 610 F.3d

1253, 1263 (11th Cir. 2010). Summary judgment is appropriate only if the record

reveals “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). We view all the evidence in

the light most favorable to McCurdy and draw all reasonable inferences in her

favor. Flowers v. Troup Cty., Ga., Sch. Dist., 803 F.3d 1327, 1335 (11th Cir.

2015). But an inference is not “reasonable” and a dispute is not “genuine” if it is

based on conclusory allegations and speculation. Black v. Wigington, 811 F.3d


       1
               On September 30, 2015, the District Court granted DDS’s motion to dismiss
McCurdy’s sex, age and national origin discrimination claims for failure to exhaust
administrative remedies. The District Court also dismissed McCurdy’s hostile work
environment and retaliation claims for failure to state a claim, and dismissed her Americans with
Disabilities Act claim because she abandoned it.
                                              2
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1259, 1265 (11th Cir. 2016). Further, “[m]ere conclusions and unsupported factual

allegations are legally insufficient to create a dispute to defeat summary

judgment.” Bald Mtn. Park, Ltd. v. Oliver, 863 F.2d 1560, 1563 (11th Cir. 1989)

(footnote omitted). To oppose a properly supported summary judgment motion,

McCurdy had to “come forward with specific factual evidence, presenting more

than mere allegations.” Gargiulo v. G.M. Sales, Inc., 131 F.3d 995, 999 (11th Cir.

1997). The above standard applies in job discrimination cases just as in other

cases. See Chapman v. AI Transp., 229 F.3d 1012, 1025-26 (11th Cir. 2000).

                                II. BACKGROUND

      As we write only for the parties, we assume familiarity with the underlying

facts and only recount what is necessary for resolution of this appeal.

      DDS employed McCurdy, a Black female over the age of 40, as a disability

specialist. McCurdy alleges that from some time before 2000 until her termination

in 2012, she performed her duties in an “exemplary and highly competent manner”

and that prior to 2010, she received positive performance ratings. The record,

however, shows that on multiple occasions McCurdy received negative

performance reviews and failed to meet DDS standards. In 2011, Beth Jones,

Tommy Warren and Ippolito became McCurdy’s direct supervisors. During this

time, McCurdy’s performance evaluations declined. McCurdy alleges that this

decline resulted from racial discrimination.

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      McCurdy also claims that DDS promoted White employees to senior

disability specialist positions while it did not promote her. She further alleges that

Jones gave her a higher case load than other employees.

      Prior to termination, McCurdy received a “Notice of Pre-Termination

Action.” The notice informed McCurdy that Ippolito had recommended that her

employment be terminated due to noncompliance with rules and failure to properly

perform job duties. McCurdy received a hearing on July 27, 2012. She did not

attend the hearing and ALSDE terminated her employment effective August 15,

2012. On November 6, 2012, McCurdy filed a charge with the Equal Employment

Opportunity Commission (“EEOC”) alleging that in 2006, she had filed an EEOC

charge of failure to promote; that in 2011, DDS placed her on a six-month

probation with a Performance Improvement Plan; that DDS assigned her to work

for White supervisors with histories of terminating Black employees; that she

received more cases than White employees; and that Ippolito told her that the

reason for termination was lack of production. She further stated, “I have no

knowledge of a similarly situated White employee who is still employed.”

      After the EEOC issued McCurdy a right-to-sue letter, she filed this lawsuit.

DDS filed a motion for summary judgment, supported by Ippolito’s affidavit, on

McCurdy’s remaining claims: race discrimination under Section 1981 and




                                              4
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Title VII based on (1) failure to promote and (2) termination of employment. 2

McCurdy filed a motion to strike the affidavit. On March 17, 2017, the District

Court denied McCurdy’s motion to strike and granted summary judgment in favor

of DDS on the remaining claims. McCurdy appealed.

                                    III. DISCUSSION

       Our discussion of this appeal is divided into three parts. First, we address

McCurdy’s motion to strike the Ippolito affidavit. Second, we address whether

DDS is entitled to Eleventh Amendment immunity on McCurdy’s Section 1981

claims. Finally, we address the merit of McCurdy’s discrimination claims under

Title VII.

A.     Ippolito Affidavit

       McCurdy appeals the District Court’s denial of her motion to strike the

Ippolito affidavit. DDS employed Ippolito in various positions for 42 years, and he

was director of DDS when he recommended termination of McCurdy’s

employment in July 2012. His 13-page affidavit covered several topics, including

how DDS conducted work evaluations, performance reviews for McCurdy and

DDS’s decision to terminate her employment.

       2
               The District Court separately considered whether McCurdy could assert claims
based on allegations that because of race, DDS (1) gave her unfavorable job duties and
assignments, (2) disciplined her and/or fabricated her disciplinary history, and (3) gave her
negative performance evaluations. Because McCurdy did not allege adverse employment action
other than termination, we evaluate these allegations as part of her employment termination
claim. See Davis v. Town of Lake Park, Fla., 245 F.3d 1232, 1241-42 (11th Cir. 2001) (negative
evaluations and reassignment of job tasks alone typically not materially adverse actions).
                                                  5
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      The parties noticed the depositions of McCurdy and Ippolito for July 22,

2016. After McCurdy’s deposition concluded, Ippolito offered to stay as long as

necessary to complete his deposition. McCurdy’s counsel indicated that he did not

want to proceed with Ippolito’s deposition that day and suggested July 29, 2016 –

the last day of discovery – as an alternative date. Ippolito told McCurdy’s counsel

that he was not available on July 29. McCurdy’s counsel did not suggest an

alternative date for Ippolito’s deposition, but McCurdy’s counsel said that he

would take Beth Jones’s deposition on July 29.

      More than two months later, on October 11, 2016, DDS filed an affidavit

from Ippolito in support of its motion for summary judgment. McCurdy asked the

District Court to strike the affidavit because Ippolito had failed to appear at the

deposition on July 29. The District Court denied the motion to strike, finding that

McCurdy had not timely filed an objection or a motion to compel Ippolito’s

deposition.

      We review the District Court’s ruling for abuse of discretion. Jefferson v.

Sewon Am., Inc., 891 F.3d 911, 919 (11th Cir. 2018). To demonstrate an abuse of

discretion, McCurdy must show that the District Court’s “decision rests upon a

clearly erroneous finding of fact, an errant conclusion of law, or an improper

application of law to fact.” Furcron v. Mail Ctrs. Plus, LLC, 843 F.3d 1295, 1304

(11th Cir. 2016) (quoting United States v. Westry, 524 F.3d 1198, 1214 (11th Cir.

                                              6
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2008)) (further citations omitted).

      On appeal, McCurdy argues that the District Court erred because she had no

opportunity to “object” to Ippolito’s affidavit before DDS filed its summary

judgment motion. McCurdy’s argument misses the point. The District Court’s

order is best understood in the context of McCurdy’s failure to timely object to

Ippolito’s failure to appear at his deposition on July 29, and her failure to seek to

compel his deposition – not McCurdy’s failure to object to the actual affidavit.

The District Court did not err in holding that before seeking to strike Ippolito’s

affidavit, McCurdy should have pursued remedies available under Fed. R. Civ.

P. 37. In addition, even after DDS filed its motion, McCurdy could have sought

leave to depose Ippolito under Fed. R. Civ. P. 56. Because McCurdy did not

timely invoke available remedies to compel Ippolito’s deposition testimony, the

District Court did not abuse its discretion in refusing to strike his affidavit.

B.    Sovereign Immunity

      The District Court held that DDS is entitled to Eleventh Amendment

immunity on McCurdy’s claims under Section 1981. Under the Eleventh

Amendment, a nonconsenting state may not be sued for damages in federal court

unless the state voluntarily waives its immunity or Congress clearly abrogates it.

See Hans v. Louisiana, 134 U.S. 1, 14-17 (1890); Cross v. Alabama, 49 F.3d 1490,

1502 (11th Cir. 1995). While Congress has abrogated immunity for money

                                               7
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damages suits brought under Title VII, Fitzpatrick v. Bitzer, 427 U.S. 445, 447-48

(1976), it has not abrogated Eleventh Amendment immunity for claims brought

under Section 1981, by and through the remedial vehicle of Section 1983.3 Quern

v. Jordan, 440 U.S. 332, 345 (1979); Carr v. City of Florence, Ala., 916 F.2d 1521,

1525 (11th Cir. 1990). It is well-settled that an arm of the state, which includes

state instrumentalities and agents, may invoke Eleventh Amendment immunity.

Manders v. Lee, 338 F.3d 1304, 1308 (11th Cir. 2003) (en banc).

       To determine whether an entity is an arm of the state, we consider four

factors: “(1) how state law defines the entity; (2) what degree of control the State

maintains over the entity; (3) where the entity derives its funds; and (4) who is

responsible for judgments against the entity.” Id. at 1309. We analyze these

factors “in light of the particular function in which the defendant was engaged

when taking the actions out of which liability is asserted to arise.” Id. at 1308

(citing Shands Teaching Hosp. & Clinics v. Beech St. Corp., 208 F.3d 1308, 1311

(11th Cir. 2000)). The function at issue here is DDS’s role as an employer and its

decisions related to McCurdy’s employment. See Ross v. Jefferson Cty. Dep’t of

Health, 701 F.3d 655, 660 (11th Cir. 2012) (where plaintiff sues for wrongful

termination, “function” at issue is termination of employment).

       As noted above, the District Court held that DDS is entitled to immunity as

       3
               Any claim for a violation of Section 1981 must be brought through the remedy
provided in 42 U.S.C. § 1983. Jett v. Dallas Ind. Sch. Dist., 491 U.S. 701, 731-32 (1989).
                                                  8
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an arm of the state. Because our review of a legal finding of immunity is plenary,

we independently analyze whether DDS is an arm of the state with no deference to

the District Court’s decision. See U.S. ex rel. Lesinkski v. South Fla. Water Mgmt.

Dist., 739 F.3d 598, 602 (11th Cir. 2014). For reasons stated below, we hold that

under Manders, DDS is an arm of the state entitled to immunity.

      1.     How State Law Defines the Entity

      The first factor considers how Alabama law defines DDS and weighs in

favor of immunity if the entity’s authority to make personnel decisions derives

from the state. Pellitteri v. Prine, 776 F.3d 777, 780 (11th Cir. 2015). The District

Court held that under Alabama law, DDS acts as a state agency when it

implements its organizational structure, makes personnel decisions and evaluates

Merit System employees and that this factor weighs “heavily” in favor of

immunity.

      Alabama law defines DDS as either a state agency or a division of the

Alabama State Department of Education (“ALSDE”). See Ala. Code § 16-2-3

(1975) (ALSDE organized into divisions and services); id. at § 36-26-65 (referring

to “Disability Determination Division of the State Department of Education”). In

addition, Alabama law states that DDS employees are “in the classified service of

the state” and receive state Merit System benefits. Ala. Code § 36-26-65(3).

      Alabama initially created DDS to fulfill a mandate under the Social Security

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Act (“SSA”) which directs states to designate a “State agency” to make disability

determinations. 42 U.S.C. § 421(a)(1)-(2). Federal law also directs states to

provide organizational structure and personnel for making disability

determinations. 20 C.F.R. § 404.1620(a); see also 20 C.F.R. § 404.1620(c) (state

required to designate claims examiners). The fact that Alabama selected DDS as

the “State agency” to fulfill its obligations under the SSA is compelling evidence

that it considers DDS a state agency.

      Because Alabama views DDS as either a state agency or a division of

ALSDE, DDS’s authority over personnel decisions derives from the state. As a

result, we agree with the District Court that this factor weighs in favor of finding

that DDS is entitled to immunity.

      2.     The State’s Degree of Control

      The second factor calls us to consider the degree of control which Alabama

maintains over DDS. See Manders, 338 F.3d at 1320. The District Court found

that ALSDE directly and substantially controlled the employment, evaluation and

termination of DDS employees.

      The record shows that DDS used State of Alabama personnel forms for

McCurdy’s annual performance reviews. Although Ippolito recommended

termination of McCurdy’s employment, the State Superintendent of Education is

the final decisionmaker for DDS personnel decisions and he signed McCurdy’s

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termination notice. Finally, McCurdy appealed her employment termination to the

Alabama State Personnel Board and she received a hearing before a State

Personnel Department Administrative Law Judge. 4 Thus, we agree with the

District Court that the second factor weighs in favor of immunity.

       3.     Source of Funds

       The third factor evaluates the source of the entity’s funding. See id. at 1323.

When the state funds the entity, it weighs in favor of immunity. Id. at 1324. The

District Court found that DDS receives funds exclusively from the United States

Treasury under 20 C.F.R. § 404.1626(a)-(d) and, accordingly, that this factor

weighs against immunity.

       Federal regulations require federal funds for both disability awards and state

administrative costs such as salaries, and do not allow states to incur expenses

beyond budgeted amounts without approval. 20 C.F.R. § 404.1626(a)-(d). The

state is not the source of DDS funds and does not control the DDS budget. Thus,

we agree with the District Court’s determination that this factor weighs against

immunity.

       4.     Responsibility for Adverse Judgments

       The fourth and final factor requires us to consider who will be responsible

       4
              McCurdy argues that school boards, which are not protected by the Eleventh
Amendment, have a closer relationship to ALSDE than DDS does. This argument is unavailing.
Unlike school boards, DDS is not an autonomous entity. DDS personnel decisions are subject to
ALSDE oversight, with the State Superintendent of Education as the final decisionmaker.
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for an adverse judgment against DDS. See Manders, 338 F.3d at 1324. “A

showing that the state would be liable for judgment militates with particular force

in favor of holding Eleventh Amendment sovereign immunity to protect the

defendant from suit in federal court; a showing that the state would not be liable

cuts strongly against such immunity.” Id. at 1346 (Barkett, J., dissenting) (citing

Regents of the Univ. of Cal. v. Doe, 519 U.S. 425, 430 (1997), and Auer v.

Robbins, 519 U.S. 452, 456 n.1 (1997)).

      The District Court concluded that a judgment against DDS would implicate

the state’s integrity because DDS is federally funded and no federal funds would

be available to pay for an adverse judgment. In applying this factor, the District

Court focused primarily on which entity would actually pay for an adverse

judgment. The relevant inquiry, however, is potential legal liability. Analysis of

this factor should not be influenced by whether an adverse judgment could in fact

be satisfied against the state. The proper focus is whether liability would fall to the

state. See Regents, 519 U.S. at 431 (full indemnity by federal government did not

affect university immunity); Manders, 338 F.3d at 1327 (actual drain on state

treasury not per se condition of Eleventh Amendment immunity). Here, even if

federal funds would reimburse DDS for paying an adverse judgment, a judgment

against DDS would subject Alabama (through ALSDE) to legal liability.

Accordingly, we agree with the District Court that this factor weighs in favor of

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immunity.

       5.     Balancing

       In balancing the four factors, DDS is properly considered an arm of the state

because (i) state law defines it as a state agency or a division of a state agency and

its authority as an employer derives from the state, (ii) the state exercises

significant control over DDS personnel decisions and (iii) although it derives its

funds from the federal government, the state would bear responsibility for a

judgment against DDS.

       For these reasons, we affirm the District Court’s holding that DDS is an arm

of the state and entitled to Eleventh Amendment immunity on McCurdy’s

Section 1981 claims.



C.     Title VII

       We now turn to McCurdy’s claims under Title VII. 5 McCurdy alleges that

because of race, DDS (1) failed to promote her and (2) terminated her employment.

See supra note 2. On her failure to promote claim, the District Court held that

McCurdy established a prima facie case but could not demonstrate that DDS’s

stated reasons for failure to promote were pretextual. On her termination claim,


       5
               Because Congress has expressly abrogated Eleventh Amendment immunity for
suits brought under Title VII, our grant of immunity to DDS on McCurdy’s Section 1981 claims
does not dispose of her Title VII claims.
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the District Court held that McCurdy did not establish a prima facie case because

she did not show that DDS treated any similarly situated employee more favorably

or replaced her with a person outside of her protected class.

      Although our reasoning and analysis differ slightly, we hold that the District

Court properly construed the facts in the light most favorable to McCurdy and did

not err in granting summary judgment to DDS on her Title VII claims. See Kernel

Records Oy v. Mosley, 694 F.3d 1294, 1309 (11th Cir. 2012) (we may affirm

district court decision on any ground supported by record).

      Title VII prohibits an employer from racially discriminating against an

employee in hiring, termination of employment or terms or conditions of

employment. 42 U.S.C. § 2000e-2(a)(1). Because McCurdy did not offer direct

evidence of discrimination, the District Court properly analyzed her claims under

the burden-shifting framework of McDonnell Douglas Corp. v. Green, 411 U.S.

792 (1973).

      Under McDonnell Douglas, McCurdy had the initial burden of establishing a

prima facie case of discrimination on each of her claims. Once McCurdy satisfied

her initial burden, the burden of production shifted to DDS to produce a reason for

the adverse employment action that was legitimate and nondiscriminatory. See id.

at 802-03. This burden is “exceedingly light.” Vessels v. Atlanta Indep. Sch. Sys.,

408 F.3d 763, 770 (11th Cir. 2005) (quoting Perryman v. Johnson Prods. Co., 698

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F.2d 1138, 1142 (11th Cir. 1983)). McCurdy then had to show that DDS’s

proffered reason was pretext for race discrimination. Vessels, 408 F.3d at 771.

      To show pretext, McCurdy must have demonstrated “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.” Alvarez, 610 F.3d at 1265 (citation omitted). We

are not concerned with whether DDS’s decision was prudent, fair or based on

correct information; we are concerned solely with whether its decision was

motivated by racial animus. See Chapman, 229 F.3d at 1030. Moreover,

McCurdy at all times had the ultimate burden of showing intentional

discrimination. Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253

(1981).

      1.     Failure to Promote

      McCurdy claims that DDS unlawfully discriminated against her by failing to

promote her to senior disability specialist. McCurdy provided eligibility

certificates which show that during the time she was promotion-eligible, three

White candidates with lower grades received promotions. The District Court

found that these certificates created a prima facie case that (1) McCurdy was

qualified for the position, (2) she was not promoted and (3) qualified employees

outside her protected class were promoted. Applying the McDonnell Douglas

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framework, the District Court required DDS to produce a nondiscriminatory reason

for not promoting McCurdy. DDS stated that during the time McCurdy was

eligible for promotion, she was just partially meeting standards and did not receive

a recommendation from her supervisor, while other candidates were meeting

standards and had received recommendations.6 Although McCurdy argues that she

refuted this “erroneous information” with a letter which she sent to the director of

DDS in 2005, her letter only evidences a personal belief that she was meeting

standards and deserved promotion. McCurdy’s letter did not create a genuine issue

of material fact whether DDS’s stated reasons for failure to promote were racially

motivated. In addition, even if McCurdy had shown that her employment rating

records were erroneous, this fact alone would not be evidence of pretext. See

Flowers, 803 F.3d at 1338; Nix v. WLCY Radio/Rahall Commc’ns, 738 F.2d

1181, 1187 (11th Cir. 1984).

       McCurdy did not demonstrate a genuine issue of material fact whether

DDS’s stated reasons for failure to promote were pretextual. Thus, the District

Court did not err in granting summary judgment to DDS on this claim.

       2.     Termination

       McCurdy claims that DDS unlawfully terminated her employment based on


       6
               McCurdy’s own evidence undermines her claim that DDS did not promote her
because of race – her brief states that DDS promoted other Black employees during her tenure
with DDS.
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performance evaluations that were negative on account of race. The District Court

held that DDS was entitled to summary judgment on this claim because McCurdy

did not identify a valid comparator whom DDS treated more favorably and she

thus failed to establish a prima facie case. The District Court did not address

whether McCurdy had presented other circumstantial evidence that could give rise

to an inference of discrimination. See Holifield v. Reno, 115 F.3d 1555, 1562

(11th Cir. 1997) (where no comparator, summary judgment appropriate unless

other evidence of discrimination). We need not evaluate whether McCurdy

established a prima facie case based on other evidence of discrimination, however,

because she has not shown that DDS’s stated reason for terminating her

employment was a pretext for illegal race discrimination. See id. at 1565 (ultimate

issue is whether plaintiff has proven intentional discrimination because of race).

      DDS’s stated reason for firing McCurdy was poor job performance.

Specifically, DDS stated that McCurdy failed to follow agency and SSA policy,

which resulted in significant delays in processing cases. McCurdy argues that

performance review ratings, audits and case assignments are susceptible to

discriminatory manipulation, but she offers no evidence that DDS actually

manipulated them. In addition, McCurdy does not offer evidence of material




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inaccuracies in her personnel record.7 See Leigh v. Warner Bros., Inc., 212 F.3d

1210, 1217 (11th Cir. 2000) (no probative value to conclusory allegations without

supporting facts) (citing Evers v. Gen. Motors Corp., 770 F.2d 984, 986 (11th Cir.

1985)). Moreover, even if McCurdy could show mistakes in her job evaluations,

mistakes alone would not be sufficient to create a genuine issue of material fact as

to pretext. See Alvarez, 610 F.3d at 1266 (accuracy of employer’s conclusion that

employee’s performance was unsatisfactory not relevant; sole concern is whether

unlawful discriminatory animus motivated decision); see also Rojas v. Florida, 285

F.3d 1339, 1342 (11th Cir. 2002) (“[W]e must be careful not to allow Title VII

plaintiffs simply to litigate whether they are, in fact, good employees.”). McCurdy

did not demonstrate a genuine issue of material fact whether DDS terminated her

employment because she failed to meet DDS performance standards. Conclusory

allegations of bias, or that DDS manipulated her evaluations, do not create a

genuine issue of material fact regarding whether DDS’s stated reason for




       7
                McCurdy argues that her pre-termination notice contained errors and
misinterpretations. Specifically, she asserts that the notice erroneously stated that she had been
subject to prior disciplinary actions when she had only been subject to counseling and appraisal
ratings, which she contends do not constitute “discipline.” The record reveals that McCurdy did
not have “disciplinary actions” on her Form 3 Employee Performance Appraisal for 1/1/10 to
1/1/11, but that she failed to meet standards for that year. In the pre-termination notice, however,
the State Superintendent listed her failure to meet standards under the heading “A review of your
past disciplinary history indicates you received the following disciplinary actions.” This appears
to be an argument over semantics. The pre-termination notice may define “disciplinary action”
more broadly than the Form 3 Performance Appraisal, but this is not evidence of pretext.
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termination was a pretext for illegal discrimination. We affirm the grant of

summary judgment to DDS on this claim.

                               IV. CONCLUSION

      For the reasons above, we AFFIRM the judgment of the District Court.




                                            19
