                                                [DO NOT PUBLISH]


           IN THE UNITED STATES COURT OF APPEALS
                                                        FILED
                 FOR THE ELEVENTH CIRCUITU.S. COURT OF APPEALS
                   ________________________ ELEVENTH CIRCUIT
                                                    JUNE 15, 2010
                         No. 09-15509                JOHN LEY
                     Non-Argument Calendar             CLERK
                   ________________________

               D. C. Docket No. 05-00142-CV-WLS-1

DR. BARBARA BRYANT,


                                                    Plaintiff-Appellant,

                             versus

DOUGHERTY COUNTY SCHOOL SYSTEM,
SALLY WHATLEY,
Individually and in her official
capacity as Superintendent of the
Dougherty County School System,
TOM HORTON,
Individually and in his former
official capacity as Executive
Director of Curriculum Instruction
Student Support Services for the
Dougherty County School System,


                                               Defendants-Appellees.
                                ________________________

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

                                        (June 15, 2010)

Before TJOFLAT, EDMONDSON and BIRCH, Circuit Judges.

PER CURIAM:

       In this employment discrimination suit, Barbara Bryant appeals the district

court’s across-the-board grant of summary judgment in favor of the Dougherty

County School System, its Superintendent and others (collectively the “School

System”). In her brief, she only challenges the court’s denial of her claims of race

and gender discrimination and retaliation in violation of Title VII of the Civil

Rights Act of 1964 (“Title VII”), 42 U.S.C. §§ 2000e-2(a)(1) and 2000e-3(a), and

42 U.S.C. §§ 1981 and 1983. We find no merit in her appeal and accordingly

affirm the district court’s judgment.1

       Bryant’s claims of race and gender discrimination stemmed from her

successive applications for four Federal Program Director positions with the



       1
          We make no further reference to Bryant’s § 1983 claims, since the merits of those
claims against the individual defendants sued in their individual capacities are the same as the
merits of the claims against them under the § 1981. The individual defendants were not
amenable to suit under Title VII, so the court dismissed the Title VII claims brought against
them. Bryant does not take issue with the court’s ruling.

                                                 2
School System: (1) Federal Programs Director (“FP Director”); (2) Federal

Programs Coordinator, which was initially advertised within the school system

only (“FP Coordinator Internal”); (3) Federal Programs Coordinator, which was

the second position re-advertised outside the school system (as well as internally)

(“FP Coordinator External”); and (4) FP/SI Director. According to the district

court, the record conclusively established that the first three positions were not

substantially similar to the fourth position because the fourth position “included the

added responsibilities of School Improvement.”

      The court held that Bryant failed to establish a prima facie case of

discrimination as a result of her not receiving any of the first three positions

because the record showed that none of those positions was ever filled. Bryant did

establish a prima facie case, however, with respect to the fourth position, FP/SI

Director. A committee interviewed the applicants for that position, including

Bryant, but recommended that the position be awarded to Robert Youngblood, who

was qualified for the position and received the most votes. The School System

articulated legitimate non-discriminatory reasons for that employment decision,

which the court, in granting summary judgment, found to be undisputed. The court

granted the School System summary judgment on Bryant’s retaliation claim—the

School System refused to let her train Youngblood after she filed her EEOC



                                           3
claim—under Title VII and § 1981, on the ground that she failed to make out a

prima facie case.

       In her brief on appeal, Bryant first contends that the district court erred in

denying her Title VII and § 1981 discrimination claims because she established a

jury issue as to whether the School System’s proffered legitimate, non-

discriminatory reasons for not promoting her were pretextual. Next, she contends

that the court erred in concluding that she failed to establish a prima facie case of

retaliation.

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

the same legal standard used by the district court.” Shiver v. Chertoff, 549 F.3d

1342, 1343 (11th Cir. 2008). The district court’s factual findings, however,

warrant review for clear error only. Robinson v. Tyson Foods, Inc., 595 F.3d 1269,

1273 (11th Cir. 2010). Additionally, “[w]e may affirm the district court’s

judgment on any ground that appears in the record, whether or not that ground was

relied upon or even considered by the court below.” Thomas v. Cooper Lighting,

Inc., 506 F.3d 1361, 1364 (11th Cir. 2007).

       Summary judgment requires that “the pleadings, the discovery and

disclosure materials on file, and any affidavits show that there is no genuine issue

as to any material fact and that the movant is entitled to judgment as a matter of



                                            4
law.” Fed. R. Civ. P. 56(c)(2). If the movant satisfies the burden of production

showing that there is no genuine issue of fact, “the nonmoving party must present

evidence beyond the pleadings showing that a reasonable jury could find in its

favor.” Shiver, 549 F.3d at 1343 (quotation omitted). In assessing the parties’

proffers under the rule, we, like the district court, view the evidence in the light

most congenial to the nonmoving party. Id. Nevertheless, the non-moving party

cannot create a genuine issue of material fact through speculation, conjecture, or

evidence that is “merely colorable” or “not significantly probative.” Id.; Anderson

v. Liberty Lobby, Inc., 477 U.S. 242, 249-50, 106 S.Ct. 2505, 2511, 91 L.Ed.2d

202 (1986); see also Fed. R. Civ. P. 56(e)(2) (“When a motion for summary

judgment is properly made and supported, an opposing party may not rely merely

on allegations or denials in its own pleading; rather, its response must . . . set out

specific facts showing a genuine issue for trial.”).

      As to Bryant’s discrimination claims, Title VII makes it unlawful for an

employer to “discriminate against any individual with respect to his compensation,

terms, conditions, or privileges of employment, because of such individual’s race,

color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a)(1). When a

plaintiff brings the same discrimination claim pursuant to Title VII and §§ 1981

and 1983, the analysis on the merits of the claim is the same. Brown v. Ala. Dep’t



                                            5
of Transp., 597 F.3d 1160, 1174, n.6 (11th Cir. 2010).

      “A plaintiff bears the burden of establishing a prima facie case of

discrimination in Title VII cases that are supported by circumstantial evidence.”

Id. at 1174. “In the failure-to-promote context, the prima facie case consists of

showing these elements: (1) that the plaintiff belongs to a protected class; (2) that

she applied for and was qualified for a promotion; (3) that she was rejected despite

her qualifications; and (4) that other equally or less-qualified employees outside

her class were promoted.” Id. Under the governing framework laid out in

McDonnell Douglas Corp v. Green, 411 U.S. 792, 802-04, 93 S.Ct. 1817, 1824-25,

36 L.Ed.2d 668 (1973), “[i]f a plaintiff makes the requisite showing, the burden of

production shifts to the employer to articulate a legitimate, nondiscriminatory

reason for its actions.” Id. “[I]f the employer articulates one or more reasons, then

the presumption of discrimination is rebutted, and the burden of production shifts

to the plaintiff to offer evidence that the alleged reason of the employer is a pretext

for illegal discrimination.” Id. (quotation and alteration omitted).

      The plaintiff may demonstrate pretext “by revealing such weaknesses,

implausibilities, inconsistencies, incoherencies or contradictions in [the

employer’s] proffered legitimate reasons for its actions that a reasonable factfinder

could find them unworthy of credence.” Springer v. Convergys Customer Mgmt.



                                           6
Group Inc., 509 F.3d 1344, 1348 (11th Cir. 2007) (quotation omitted). “However,

a reason is not pretext for discrimination unless it is shown both that the reason

was false, and that discrimination was the real reason.” Id. at 1349 (quotation

omitted).

      As to a claim of retaliation, the prima facie case for a Title VII or § 1981

retaliation claim requires the plaintiff to show that: (1) she engaged in a statutorily

protected activity; (2) she suffered an adverse employment action; and (3) she

established a causal link between the protected activity and the adverse action.

Bryant v. Jones, 575 F.3d 1281, 1307-08 (11th Cir. 2009), cert. denied, (U.S. Feb.

22, 2010) (No. 09-743).

      With these principles in mind, we turn first to Bryant’s discrimination claim,

then to her retaliation claim.

      As noted above, Bryant’s failure to obtain any of the first three positions

could not have been discriminatory because the positions were not filled. Bryant

made out a prima facie case of discrimination as to the fourth position, FP/SI

Director, and, as the district court stated, the School System articulated two

legitimate, non-discriminatory reasons for not giving her the position.

      First, [the School System] contend[s] that Plaintiff was not promoted .
      . . because Plaintiff was not recommended by the interview committee
      tasked with recommending candidates. Defendants’ second proffered
      legitimate, nondiscriminatory reason is that the chosen candidate,

                                        7
      Youngblood, was more qualified than Plaintiff. . . . [The School
      System] posit[s] that Youngblood was the most qualified candidate
      for the position because he received the most recommendations from
      the interview committee.


We are satisfied that those are legitimate, non-discriminatory reasons for the

employment decision. Bryant, however, as the district court correctly determined,

failed to establish a jury issue as to whether those reasons were a pretext for

discrimination. Summary judgment on the discrimination claims was therefor

appropriate.

      Bryant finds pretext in the letter the School System sent her, notifying her

that she had not been chosen for the FP/SI Director but not explaining why. The

district court was not persuaded:


      [T]he purpose of the rejection letter was merely to notify Plaintiff that she
      was not selected for the . . . position and that another candidate was selected.
      Therefore, Defendants’ failure to include any explanation in the rejection
      letter for their reasons not to promote Plaintiff is not pretextual.
      Additionally, Plaintiff has made no showing that such an explanation was
      required or was an existing policy or practice of [the school system].


The record fully supports the court’s statement. The letter did not yield pretext.

      Regarding Bryant’s retaliation claim, the court concluded, with the statement

we quote below, that Bryant failed to make out a prima facie claim of retaliation

because she did not establish that any of the individual defendants were aware of

                                           8
her EEOC complaint at the time they allegedly disallowed her to train

Youngblood.

      After searching the record, the scant evidence the Court could find to
      support Plaintiff’s retaliation claim was Plaintiff’s affidavit filed with
      her brief . . . . This evidence fail[ed] to establish [the individual
      defendants’] knowledge of the filing of her EEOC charge: the
      statement [concerning these defendants’ refusal to allow Bryant to
      train Youngblood] does not even mention the EEOC charge, let alone
      allege that [the individual d]efendants were aware that the EEOC
      charge had been filed. [Consequently, Bryant] failed to establish the
      ‘causal link’ required in her prima facie case.

      We find no issue of fact for the jury regarding Bryant’s retaliation

claim. Summary judgment was accordingly in order.

      AFFIRMED.




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