                                                         [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS
                                                                   FILED
                    FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                      ________________________ ELEVENTH CIRCUIT
                                                          DECEMBER 10, 2009
                             No. 09-12111                 THOMAS K. KAHN
                         Non-Argument Calendar                CLERK
                       ________________________

                  D. C. Docket No. 07-01812-CV-WBH-1

DOUGLAS CARL,

                                                               Plaintiff-Appellee,

                                  versus

FULTON COUNTY, GEORGIA,

                                                                      Defendant,

THOMAS ANDREWS,

                                                         Defendant-Appellant.


                       ________________________

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

                           (December 10, 2009)

Before BLACK, BARKETT and HULL, Circuit Judges.

PER CURIAM:
      Thomas Andrews appeals the district court’s denial of qualified immunity in

a suit Douglas Carl brought against him and Fulton County, Georgia, alleging race

and gender discrimination under 42 U.S.C. §§ 1981 and 1983 and Title VII of the

Civil Rights Act of 1964, 42 U.S.C. § 2000e-2(a)(1), based on Andrews’ failure to

promote Carl. Andrews asserts the district court erred in denying him qualified

immunity by relying on “stray comments” from various individuals, which were

too attenuated to be attributed to his decision. Andrews further contends his

subjective reasons for not promoting Carl—that Carl performed poorly in the

interview and the other individual was the best qualified and performed well

during her interview—were not discriminatory and were objectively reasonable,

such that he was entitled to qualified immunity.

      The district court concluded there were disputed issues of material fact

regarding whether Andrews’ reasons for failing to promote Carl were pretextual,

and denied summary judgment and qualified immunity to Andrews. After a

thorough review of the record, and the parties’ briefs, we agree with the district

court’s conclusion. Thus, we affirm the district court’s denial of qualified

immunity.

      AFFIRMED.




                                           2
