                    Case: 11-16180          Date Filed: 09/25/2012   Page: 1 of 8

                                                                        [DO NOT PUBLISH]

                      IN THE UNITED STATES COURT OF APPEALS

                                   FOR THE ELEVENTH CIRCUIT
                                    ________________________

                                            No. 11-16180
                                        Non-Argument Calendar
                                      ________________________

                               D.C. Docket No. 1:10-cv-00285-KD-C



STEPHANIE R. LINDSEY,

llllllllllllllllllllllllllllllllllllllll                                    Plaintiff-Appellant,

                                                  versus

BOARD OF SCHOOL COMMISSIONERS OF MOBILE COUNTY,

lllllllllllllllllllllllllllllllllllllll                                  lDefendant-Appellee.

                                     ________________________

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

                                           (September 25, 2012)

Before TJOFLAT, MARCUS and KRAVITCH, Circuit Judges.

PER CURIAM:
              Case: 11-16180     Date Filed: 09/25/2012    Page: 2 of 8

      Stephanie R. Lindsey, a black female, appeals the district court’s grant of the

Board of School Commissioners of Mobile County’s (“the Board”) motion for

summary judgment as to her complaint alleging race-based discrimination under Title

VII and 42 U.S.C. § 1981. Lindsey alleged that a Misty Sullivan, a white co-worker,

was paid at a higher rate for substantially the same work. On appeal, Lindsey alleges

that she raised a genuine issue as to whether the Board’s legitimate,

non-discriminatory reason for the wage discrepancy was a pretext for discrimination.

After careful review, we affirm in part, and vacate and remand in part.

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

same legal standards as the district court. Cruz v. Publix Super Markets, Inc., 428

F.3d 1379, 1382 (11th Cir. 2005). Summary judgment is appropriate when, viewing

all facts and reasonable inferences in favor of the non-moving party, there is no

genuine issue as to any material fact, and the moving party is entitled to judgment as

a matter of law. Id.; see also Fed.R.Civ.P. 56(a).

      Under Title VII, it is unlawful for an employer to discriminate against an

individual with respect to her compensation because of her race. 42 U.S.C. §

2000e-2(a)(1). If a Title VII disparate treatment claim is based on the same facts as

a § 1981 or § 1983 claim, the analysis is the same under all theories of liability, and

the claims need not be analyzed separately. See Crawford v. Carroll, 529 F.3d 961,

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970 (11th Cir. 2008). Where, as here, a plaintiff’s Title VII claim relies on

circumstantial evidence, we apply the McDonnell Douglas framework. Brooks v.

Cnty. Comm’n of Jefferson Cnty., Ala., 446 F.3d 1160, 1162 (11th Cir. 2006).

      Under McDonnell Douglas, the plaintiff carries the initial burden of

establishing a prima facie case of discrimination. McDonnell Douglas, 411 U.S. at

802. In order to state a prima facie case of wage discrimination, the plaintiff must

establish that: (1) she belongs to a protected class; (2) she received low wages; (3)

similarly situated comparators outside of the protected class received higher wages;

and (4) she was qualified to receive the higher wage. Cooper v. Southern Co., 390

F.3d 695, 734-35 (11th Cir. 2004), overruled in part on other grounds, Ash v. Tyson

Foods, 546 U.S. 454 (2006). As for prong three, a valid comparator must perform a

job similar to the plaintiff, id. at 735, and must be similarly situated to the plaintiff

in all relevant respects. Holifield v. Reno, 115 F.3d 1555, 1562 (11th Cir. 1997).

      If the plaintiff establishes a prima facie case of discrimination, the burden of

production, but not persuasion, shifts to the defendant to proffer a legitimate,

non-discriminatory reason for taking the challenged employment action. St. Mary’s

Honor Ctr. v. Hicks, 509 U.S. 502, 506-07 (1993). Once the defendant does so, the

plaintiff must then demonstrate that the proffered reason was pretextual. Id. at

507-08. To meet this burden, the plaintiff must demonstrate both that the proffered

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reason was false, and that discrimination was the real reason for the employment

action. Id. at 515. We must, in view of all of the evidence, determine if a reasonable

jury could conclude that the employer’s proffered reasons did not truly motivate it.

Combs v. Plantation Patterns, 106 F.3d 1519, 1538 (11th Cir. 1997). We can reach

this conclusion if the plaintiff demonstrates that the proffered reason was implausible

or inconsistent to the degree that a reasonable fact-finder could find it unworthy of

credence. Id.

      In the context of a failure to promote claim, we have held that an employer’s

willingness to bend or break established rules to benefit members of one class of

employees, but not another, is suggestive of discrimination. Morrison v. Booth, 763

F.2d 1366, 1374 (11th Cir. 1985). In Morrison, officials were flexible with or

ignored internal hiring requirements to benefit white applicants for a promotion, but

declined to do so for black applicants. Id. Under those circumstances, we held that

the employer’s proffered reliance on standard procedures as a basis for not promoting

the black employees was pretextual. Id.

      To begin, Lindsey met her initial burden of establishing a prima facie case of

wage discrimination, and the Board does not argue otherwise. Lindsey was a black

woman who received lower wages than a white co-worker despite performing

substantially the same work. See Cooper, 390 F.3d at 734-35. Sullivan was a valid

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comparator because, viewing the evidence in the light most favorable to Lindsey, see

Cruz, 428 F.3d at 1382, she and Lindsey largely performed similar tasks at work

during the relevant periods. See Cooper, 390 F.3d at 735. The fact that Lindsey was

Sullivan’s immediate successor in many of her tasks helps to demonstrate that the two

were similarly situated.

      Since Lindsey established a prima facie case, the burden shifted to the Board

to articulate a legitimate, non-discriminatory reason why Sullivan received higher

wages than Lindsey. See Hicks, 509 U.S. at 506-07. The Board met this burden of

production, providing that a previous set of supervisors improperly classified Sullivan

as a mechanic, and the new supervisors could not do the same, because Lindsey was

not a state-certified mechanic.

      After the Board proffered a legitimate, non-discriminatory reason for the wage

differential, Lindsey had the burden of raising a genuine issue that the reason was a

pretext for discrimination. See id. at 507-08. Lindsey argues that the Board’s

willingness to make Sullivan a mechanic, despite her lack of qualifications,

demonstrates that the Board’s adherence to policy in her case was implausible.

However, Stephen Cain, Sullivan’s former supervisor, transferred Sullivan to

mechanic in 1997. After Lindsey assumed Sullivan’s job duties, no mechanic

position was available until Sullivan vacated her position in 2003 or 2004. At that

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point, Sadie Cates was the department supervisor, and she would not place a

non-certified mechanic into a mechanic position. Cates did not think Sullivan should

have been a mechanic, but was prevented from reclassifying her to a position with

lower pay. Lindsey is correct that the inconsistent application of company policy can

be suggestive of discrimination. See Morrison, 763 F.3d at 1374. However, here, the

inconsistent application occurred six years apart, and was enforced by two different

supervisors. Under those circumstances, the inconsistent application, by itself, does

not render the Board’s legitimate explanation that it was merely enforcing policy

implausible or inconsistent to the degree that a reasonable fact-finder could find it

unworthy of credence. See Combs, 106 F.3d at 1538.

      Lindsey also argues that the Board could have provided Lindsey with equal

wages by promoting her to a vacant transportation clerk position -- a position which

more accurately described her work tasks. In response to that argument, the Board

again asserted its policy -- that the transportation clerk had a minimum typing

proficiency requirement that Lindsey could not meet -- as a legitimate

non-discriminatory reason for not allowing Lindsey to become a transportation clerk.

      Again, the burden shifted to Lindsey to raise a genuine issue that the Board’s

proffered reason was pretextual. See Hicks, 509 U.S. at 507-08. Here, Lindsey met

that burden by showing that Cates, as she had previously done for Sullivan, requested

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a waiver of the typing requirement for a clerk position on Lindsey’s behalf. However,

while Paul Tate, in human resources, had granted waivers for Sullivan in 2003, he

declined Cates’s request for Lindsey in 2007. Again, the unequal application of

company policies may be suggestive of discrimination. See Morrison, 763 F.3d at

1374.      Unlike with the mechanic classification, there is no apparent

non-discriminatory reason in the record explaining why Tate would have granted the

waiver for Sullivan, and not granted it for Lindsey.

        The Board asserts on appeal that Tate made this decision because the Board

had granted too many waivers to both white and black employees. But as Lindsey

correctly points out, the Board made that assertion without a citation, and the record

is devoid of any support for that assertion. The record only reflects that Tate simply

told Cates he would no longer grant waivers as he had done in the past. The record

contains no affidavit or deposition of Tate.

        In this instance, an arbitrary willingness to waive the typing requirement for

Sullivan, and not for Lindsey, without any apparent non-discriminatory reason for the

discrepancy, could lead a reasonable fact-finder to conclude that the Board’s stated

adherence to policy was inconsistent to the degree that it was unworthy of credence.

See Combs, 106 F.3d at 1538. If so, summary judgment was inappropriate to the

extent that the Board could have remedied the disparate wages as between Sullivan

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and Lindsey by waiving Lindsey’s typing requirement for the open clerk position.

A reasonable jury could conclude that the Board failed to remedy the fact that

Lindsey was paid less than a comparable white worker, and that its reason for doing

so was racially discriminatory. Accordingly, the court’s grant of summary judgment

should be vacated, and the case remanded.

       We must note, however, that a waiver of the typing requirement was only a

pertinent possibility starting in late 2006, and, in July 2007, Lindsey’s job tasks were

reclassified. Since the Board’s pre-2006 reason for paying Lindsey less than Sullivan

was not pretextual, Lindsey should be limited to a recovery, if at all, of disparate

wages for the latter time period of less than one year.1

       AFFIRMED IN PART, VACATED AND REMANDED IN PART.




       1
         Further, because Lindsey only raises issues concerning the denial of her Title VII and 42
U.S.C. § 1981 claims for wage discrimination, all other issues are abandoned on appeal. See
United States v. Jernigan, 341 F.3d 1273, 1283 n.8 (11th Cir. 2003). To the extent that the Board
and the district court asserted that Lindsey raised a failure to promote claim, Lindsey explicitly
has abandoned this argument.

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