                                                        [DO NOT PUBLISH]


            IN THE UNITED STATES COURT OF APPEALS

                   FOR THE ELEVENTH CIRCUIT
                                                              FILED
                     ________________________ U.S. COURT OF APPEALS
                                                       ELEVENTH CIRCUIT
                                                          October 6, 2005
                            No. 05-10020
                                                        THOMAS K. KAHN
                        Non-Argument Calendar               CLERK
                      ________________________

                  D. C. Docket No. 02-02237-CV-HS-S

THOMAS STUART,


                                                          Plaintiff-Appellant,

                                 versus

JEFFERSON COUNTY DEPARTMENT OF HUMAN RESOURCES,
CARO SHANAHAN,
in her individual capacity,


                                                       Defendants-Appellees.


                      ________________________

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

                           (October 6, 2005)

Before CARNES, MARCUS and KRAVITCH, Circuit Judges.

PER CURIAM:
       Thomas Stuart appeals the district court’s grant of summary judgment on his

gender discrimination claims against the Jefferson County Department of Human

Resources (“JCDHR”) and its director, Caro Shanahan (collectively “the

defendants”), brought pursuant to Title VII of the Civil Rights Act of 1964, 42

U.S.C. § 2000(e) et seq. and 42 U.S.C. § 1983.

                                     I. Background

       Stuart has worked for JCDHR 1 since 1980 and currently holds the position

of financial support supervisor. On September 11, 2002, Stuart filed his complaint.

In Count I, he alleged that JCDHR discriminated against him on the basis of his

gender by failing to promote him, in violation of Title VII. Count II was a § 1983

claim against Shanahan in her individual capacity, in which he alleged that

Shanahan violated his constitutional right to equal protection by failing to promote

him because of his gender. His complaint listed three occasions when he was

denied a promotion: (1) on June 28, 2001, a position as JCDHR program

supervisor became available, and Claire Brock was chosen; (2) on October 9, 2001,

a promotion to JCDHR program specialist became available, and Jennifer Griffen

was promoted; and (3) on June 12, 2002, a position as child support program

supervisor became available and Yolanda Boleware was selected. Attached to the


       1
         JCDHR is an Alabama State Agency, operating in Jefferson County, Alabama, pursuant
to Ala. Code § 38-2-8.

                                             2
complaint was a copy of his EEOC charge, filed on April 1, 2002.

       The defendants moved for summary judgment. The district court granted

summary judgment in part, dismissing the Title VII claims against JCDHR, but

allowing the § 1983 claims against Shanahan to proceed. In considering the Title

VII claims, the district court found that the June 2001 claim was untimely, because

it occurred more than 180 days before Stuart filed his EEOC charge on April 1,

2002. The district court also found that the June 2002 was procedurally barred,

because it fell outside the scope of the incidents alleged in the EEOC charge.

Thus, the only Title VII claim addressed by the district court was the one involving

the October 2001 promotion. For this claim, the district court concluded that

Stuart had made out a prima facie case, but that the defendants had set forth a

legitimate, non-discriminatory reason for not selecting Stuart, and that Stuart was

unable to show this reason was pretextual.

       The defendants moved for reconsideration, asserting that Stuart could not

show intent to discriminate under § 1983.2 The court granted the motion to

reconsider and granted summary judgment on the § 1983 claims, finding that,

because § 1983 and Title VII are analyzed under the same standards, and Stuart



       2
          Attached to the motion were copies of evaluations for Griffen and Boleware but
because this evidence was presented for the first time in the motion for reconsideration, the
district court refused to consider it.

                                                 3
had failed to show pretext on his Title VII claims, summary judgment was also

appropriate on the § 1983 claims. Stuart now appeals.

                               II. Standard of Review

      We review a district court’s grant of summary judgment de novo, viewing

the evidence in the light most favorable to the party opposing the motion. Wilson

v. B/E Aerospace, Inc., 376 F.3d 1079, 1085 (11th Cir. 2004). Summary judgment

is appropriate “if the pleadings, depositions, answers to interrogatories, and

admissions on file, together with the affidavits, if any, show that there is no

genuine issue as to any material fact and that the moving party is entitled to a

judgment as a matter of law.” Fed. R. Civ. P. 56(c); Eberhardt v. Waters, 901 F.2d

1578, 1580 (11th Cir. 1990).

                                    III. Discussion

A. Timeliness of June 2001 Failure to Promote Claim

      Stuart argues that the district court erred in finding that his June 2001 claim

was untimely. As a prerequisite to filing suit under Title VII, a plaintiff must file a

timely charge of discrimination with the EEOC. Mitchell v. Jefferson County Bd.

Of Educ., 936 F.2d 539, 543 (11th Cir. 1991). “In Alabama, a non-deferral state, a

plaintiff must file a Title VII discrimination charge with the EEOC within 180 days

of the alleged violation.” Tipp v. AmSouth Bank, 76 F.Supp.2d 1315, 1327 (S.D.



                                           4
Ala. 1998), aff’d, 229 F.3d 1166 (11th Cir. 2000). Viewing the facts in the light

most favorable to Stuart, July 31, 2001 was the latest date on which he could have

been informed that he was denied this promotion. Therefore, as his charge was not

filed until April 1, 2002, this claim is outside of the 180 day time period.

      Stuart acknowledges this, but urges us to view his claim as a “continuing

violation.” “In determining whether a discriminatory employment practice

constitutes a continuing violation, this Circuit distinguishes between the present

consequence of a one time violation, which does not extend the limitations period,

and the continuation of that violation into the present, which does.” Calloway v.

Partners Nat. Health Plans, 986 F.2d 446, 448 (11th Cir. 1993). We reject Stuart’s

contention that his claims are continuing violations. An employer’s failure to

promote is a discrete act or single occurrence and therefore the continuing violation

doctrine does not apply. Nat’l R.R. Passenger Corp v. Morgan., 536 U.S. 101, 114

(2002). For Stuart’s claims to be timely, he was required to file his EEOC

complaint within 180 days of each discrete employment decision. Because the

June 2001 claim arose more than 180 days before Stuart filed his EEOC charge,

the district court properly refused to consider it.

B. June 2002 Claim and Scope of Charge

      Next, we consider whether the district court erred in concluding that Stuart’s



                                            5
June 12, 2002 failure to promote claim was procedurally barred because it was

outside the scope of the EEOC charge. A “plaintiff’s judicial complaint is limited

by the scope of the EEOC investigation which can reasonably be expected to grow

out of the charge of discrimination.” Gregory v. Georgia Dep’t of Human

Resources, 355 F.3d 1277, 1280 (11th Cir. 2004). Judicial claims that “amplify,

clarify, or more clearly focus” the allegations in the EEOC charge are permitted,

but the plaintiff cannot allege new acts of discrimination. Gregory, 355 F.3d at

1279-80.

      Stuart’s EEOC charge alleged two instances of failure to promote (June

2001 and October 2001), but his complaint added a third instance, the June 2002

allegation, which occurred after the filing of the charge. The June 2002 allegation

did not amplify or clarify the previous allegations, nor did it grow out of the

previous claims. A purpose of Title VII’s exhaustion requirement is to notify the

defendant of the allegations and to give the EEOC “the first opportunity to

investigate the alleged discriminatory practices to permit it to perform its role in

obtaining voluntary compliance and promoting conciliation efforts.” Green v.

Elixir Ind., Inc., 407 F.3d 1163, 1167 (11th Cir. 2005). Stuart never amended or

updated his April 1, 2002 EEOC charge, so there was nothing in the charge that

would have put the employer on notice of his June 2002 claim. Nor did the EEOC



                                           6
ever have an opportunity to investigate that claim. Accordingly, the district court

properly refused to consider the June 2002 claim as being outside the scope of the

EEOC charge.

C. October 9, 2001 Allegation

      Stuart also contends that the district court erroneously concluded that he

failed to establish that the defendant’s reasons for not selecting him for the October

2001 position were a pretext for discrimination. To evaluate Title VII gender

discrimination claims based upon circumstantial evidence3, courts use the familiar

burden-shifting analysis established in McDonnell Douglas Corp. v. Green, 411

U.S. 792 (1973) and Texas Department of Community Affairs v. Burdine, 450 U.S.

248 (1981). See Combs v. Plantation Patterns, 106 F.3d 1519, 1527-28 (11th Cir.

1997). Under this framework, the plaintiff must first establish a prima facie case

by showing that (1) he was qualified and applied for the position; (2) he was

rejected despite his qualifications; and (3) other equally or less qualified employees

who are not members of his gender were promoted. Wilson, 376 F.3d at 1089.

Once the plaintiff establishes a prima facie case, the burden shifts to the employer

to show a legitimate nondiscriminatory reason for the employer’s actions.

McDonnell Douglas Corp., 411 U.S. at 802. If the employer does so, the plaintiff



      3
          This case does involve any direct evidence of discrimination.

                                                 7
then bears the burden of demonstrating that the employer’s proffered reason was a

pretext for discrimination. Id. at 802-04, 807. At that stage, the court should

evaluate whether the plaintiff 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.” Combs, 106 F.3d at 1538. If the plaintiff fails to offer

sufficient evidence of pretext, the employer is entitled to summary judgment in its

favor. Chapman v. AI Transport, 229 F.3d 1012, 1025 n.11 (11th Cir. 2000) (en

banc). “If the proffered reason is one that might motivate a reasonable employer, a

plaintiff cannot recast the reason but must meet it head on and rebut it.” Wilson,

376 F.3d at 1088.

      We accept the district court’s conclusion that Stuart made out a prima facie

case with respect to his October 2001 claim. The evidence showed that Stuart was

listed on the register of eligibility and met the generic qualifications for the

position sought. See Wilson, 376 F.3d at 1089. The defendants, however,

proffered legitimate, non-discriminatory reasons for not selecting him, namely that

the female chosen for the position–Jennifer Griffen–had more experience for the

position at issue. The defendants stated that Griffen had ten years of experience in

the child support area, and there is evidence in the record supporting the



                                            8
defendant’s position that child support experience was important for the job in

question.4 Stuart concedes that he did not have any experience in child support.

Once the defendants put forth this non-discriminatory reason, the burden shifted to

Stuart to show that this reason lacked credibility.

       Stuart failed to show pretext. He cannot prove pretext merely by baldly

asserting that he was better qualified than the person who received the position at

issue. Instead, he must proffer evidence that the disparity in qualification was “so

apparent as virtually to jump off the page and slap you in the face.” Wilson, 376

F.3d at 1090 (citing Cofield v. Goldkist, Inc., 267 F.3d 1264, 1268 (11th Cir.

2001). “For the discrepancies to ‘jump off the page and slap you in the face,’ they

must be of such weight and significance that no reasonable person could have

chosen [Griffen] over [Stuart].” Id.

       Here, Stuart failed to offer any evidence that he was more qualified than

Griffen, that the discrepancies in their qualifications were so apparent as to jump

off the page, or that the defendant’s reason why it promoted Griffen over Stuart

was otherwise pretextual. See Denney v. City of Albany, 247 F.3d 1172, 1187

(11th Cir. 2001). Accordingly, as Stuart failed to demonstrate pretext, summary

judgment was proper.


       4
        Specifically, Stuart stated in his EEOC charge that he “was informed by letter...that they
were particularly interested in applicants with child support experience.”

                                                9
D. § 1983 Claims

       Finally, Stuart argues that the court erred by granting the defendants’ motion

for reconsideration and granting summary judgment on all of the equal protection

claims against Shanahan. To state of a cause of action under § 1983, Stuart must

show that his constitutional rights were violated by a person acting under color of

state law. Griffin v. City of Opa-Locka, 261 F.3d 1295, 1303 (11th Cir. 2001).

“When section 1983 is used as a parallel remedy for violation of...Title VII, the

elements of the two causes of action are the same.” 5 Snider v. Jefferson State

Community College, 344 F.3d 1325, 1328 n.4 (11th Cir. 2003) (emphasis in

original).

       Here, the district court properly granted summary judgment on Stuart’s

§ 1983 claim relating to the October 2001 promotion.6 As discussed supra, Stuart

failed to establish that the reasons given for the employment decision were a

pretext for discrimination. Nonetheless, the district court erred in dismissing



       5
         Section 1983 creates no substantive rights; it merely creates a remedy for deprivations
of federal constitutional and statutory rights. Almand v. Dekalb County, 103 F.3d 1510, 1512
(11th Cir. 1997). Here, Stuart’s substantive rights stem from the Equal Protection Clause of the
Fourteenth Amendment. See Williams v. Consolidated City of Jacksonville, 341 F.3d 1261,
1268 (11th Cir. 2003).
       6
         The district court also properly rejected Shanahan’s defense of qualified immunity
because gender discrimination was a clearly established violation of the law at the time of the
alleged violations. See Williams v. Consolidated City of Jacksonville, 341 F.3d 1261, 1270-71
(11th Cir. 2003).

                                               10
Stuart’s other two § 1983 claims (the June 2001 and June 2002 claims) because it

never made factual findings with regard to those claims. Rather, as discussed

supra, the June 2001 and June 2002 claims were never considered on the merits

because they were procedurally barred under Title VII.

      Although the elements are the same under Title VII and § 1983, Stuart’s

claims under § 1983 do not involve the same procedural requirements. In

particular, the applicable statute of limitations under § 1983 follows the statute of

limitations applicable in the state in which the conduct occurred, which, in

Alabama, is two years. See Ala. Code § 6-2-38 (2004); Lufkin v. McCallum, 956

F.2d 1104 (11th Cir. 1992). Stuart filed his complaint on September 11, 2002,

making the June 2001 and June 2002 claims timely.

      Accordingly, we VACATE and REMAND for the district court to address

the § 1983 claims against Shanahan arising from the June 2001 and June 2002

promotions and AFFIRM the district court’s entry of summary judgment on the

Title VII claims and the § 1983 claim arising out of the October 2001 promotion.

AFFIRMED in part, VACATED and REMANDED in part.




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