             Case: 18-11081     Date Filed: 03/26/2019   Page: 1 of 14


                                                              [DO NOT PUBLISH]



               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________

                                 No. 18-11081
                             Non-Argument Calendar
                           ________________________

                       D.C. Docket No. 2:16-cv-00340-RDP

KENNETH E. DUKES,

                                                                 Plaintiff-Appellant,

                                       versus

SHELBY COUNTY BOARD OF EDUCATION,
AUBREY MILLER,
President of the Board of Education in his official and individual capacities,
PEG HILL,
Vice President of the Board of Education in her official and individual capacities,
JIMMY BICE,
Member of the Board of Education in his official and individual capacity,
JANE HAMPTON,
Member of the Board of Education in her official and individual capacities, et al.,

                                                             Defendants-Appellees.

                           ________________________

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

                                 (March 26, 2019)
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Before MARTIN, JILL PRYOR, and ANDERSON, Circuit Judges.

PER CURIAM:

      Kenneth Dukes sued the Shelby County Board of Education, five of its

members, Aubrey Miller, Peg Hill, Jimmy Bice, Jane Hampton, and Kevin Morris

(collectively, the “Board Members”), and Randy Fuller, Shelby County Schools

Superintendent. Dukes claims the Board, the Board Members, and Fuller

discriminated against him by failing to promote him on account of his race, in

violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2(a), and

42 U.S.C. §§ 1981 and 1983. The district court granted summary judgment for the

Board, the Board Members, and Fuller. After careful review, we affirm.

                                         I.

      Dukes, an African-American male, started working for Shelby County

Schools in 1986 as a substitute bus driver. He became a regular bus driver in 1988.

Although his stops and exact route are modified every year, his route has covered

the same general area for at least the past 20 years. Between 1989 and 1994,

Dukes also worked as a weekend and summer bus driver for a private company,

Shelby County Area Transportation. In this position, he drove Shelby County

residents to different medical appointments and transported campers from the

airport to a university, where a soccer camp was held.




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      Dukes has also held a variety of leadership positions related to bus driving.

He served on a committee that made recommendations about “bus routes, bus

equipment, and apparatus needs, policies with respect to bus drivers” to the

Board’s Transportation Department. He also served as the President of the Shelby

County Education Support Professionals, a division of the Alabama Education

Association for Shelby County Schools. As President, Dukes was the “go-to

person for all [of the other bus drivers’ needs], including routing, bus equipment

concerns, [and] student and parent problems and complaints.” He was also the

Alabama Education Association’s representative for support personnel, which

included the bus drivers employed by the Board. In both these positions, Dukes

says the Board’s Transportation Department contacted him for his expertise on bus

routes, equipment, purchasing, and policies.

      Dukes first applied to be a transportation route supervisor in 2012. A panel

of four Shelby County Schools employees interviewed eleven candidates,

including Dukes. The panel ultimately recommended Samuel “Brian” Miller for

the position to Superintendent Fuller, who in turn recommended Brian Miller to the

Board. Brian Miller said in his interview he had five years experience as a full-

time substitute bus driver, which required him to drive throughout Shelby County.

The panel therefore felt Brian Miller would be better suited for the position since




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he had more experience driving in a variety of areas in Shelby County, as opposed

to a single generalized area. The Board ultimately hired Brian Miller.1

       After being rejected from the 2012 position, Dukes went and spoke with

Aubrey Miller, the only African-American person on the Board. Dukes told

Aubrey Miller there were no minorities in the Transportation Department, and that

he applied for the position in 2012 but was rejected then as well. In response,

Aubrey Miller told Dukes to let him know when Dukes applied for the

transportation route supervisor position again and he “would keep an eye on it.”

       Dukes applied to be a transportation route supervisor again in 2014 when

Shelby County Schools posted another vacancy, and informed Aubrey Miller he

had applied. As with the 2012 transportation route supervisor position, a panel of

four Shelby County Schools employees conducted interviews. Only three

applicants and Dukes were officially “interviewed” for the position. Two of these

applicants, including Brent Copes, had been interviewed two weeks before as part

of the hiring process for a transportation coordinator position. Using a recent

interview for a candidate was standard procedure when a candidate was

interviewed for more than one position in a short timeframe. The panel decided to




       1
         The Board initially posted a notice of vacancy for two transportation route supervisor
positions. Ultimately, Shelby County Schools decided to fill only one position because Shelby
County Schools needed to reduce expenses when one of Shelby County’s municipalities,
Alabaster, created a separate school district.
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recommend Copes even though he had been disciplined for bringing his special

needs child on a school field trip. The panel noted Copes had previous leadership

experience as a principal and assistant principal.

      The Board voted to hire Copes as the transportation route supervisor at a

special meeting two days before its regularly scheduled meeting. Although there

was a quorum at the special meeting, Aubrey Miller was not in attendance. Tom

Ferguson, the Shelby County Schools Deputy Superintendent, presented the

panel’s recommendation of Copes. Ferguson testified he does not know why the

special meeting was called or why the vote couldn’t wait two days. 2 The meeting

minutes from the special meeting note Dukes was in attendance and gave the

invocation, but Dukes says he was not at the meeting.

      After being rejected from the 2014 route transportation position, Dukes and

his friend, Bobby Pierson, spoke with Bice, a member of the Board who voted on

Copes’s promotion. Pierson applied for the transportation route supervisor

position in the early 2000s and had also been rejected. Dukes and Pierson asked

Bice why there were no African-American people in the Transportation

Department, and Bice responded that a “black” would be considered if the Board

ever received a decent resume from an African-American person.




      2
          There is no explanation or any record evidence about why this meeting was called.
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      Dukes filed a charge of discrimination with the Equal Employment

Opportunity Commission (“EEOC”) on October 16, 2014. The Board provided

incorrect information to the EEOC in responding to Dukes’s EEOC charge. The

Board misstated who interviewed Copes and also incorrectly told the EEOC that

Copes “developed a computer program that created transportation routes for the

bus routes.” Instead, Copes actually told the panel he used mapping software to

create bus routes.

      After receiving his Notice of Rights, Dukes filed suit against the Board, the

Board Members, and Fuller on February 26, 2016. They in turn moved for

summary judgment, and the district court granted their motion. Dukes timely filed

this appeal.

                                          II.

      We review de novo the grant of summary judgment. Alvarez v. Royal Atl.

Developers, Inc., 610 F.3d 1253, 1263 (11th Cir. 2010). “We will affirm if, after

construing the evidence in the light most favorable to the non-moving party, we

find that no genuine issue of material fact exists and the moving party is entitled to

judgment as a matter of law.” Id. at 1263–64; Fed. R. Civ. P. 56(a).




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                                            III.

       Dukes claims intentional race-based discrimination, which can be proved

through circumstantial evidence. 3 A plaintiff can establish intentional

discrimination through circumstantial evidence in two ways. He may either satisfy

the burden-shifting framework established in McDonnell Douglas Corp. v. Green,

411 U.S. 792, 93 S. Ct. 1817 (1973), Flournoy v. CML-GA WB, LLC, 851 F.3d

1335, 1339 (11th Cir. 2017), or present a “convincing mosaic of circumstantial

evidence that would allow a jury to infer intentional discrimination.” Smith v.

Lockheed-Martin Corp., 644 F.3d 1321, 1328 (11th Cir. 2011) (quotation marks

omitted). Dukes argues that he has shown intentional discrimination through both

methods. We address each in turn.

                                             A.

       Under the McDonnell Douglas burden-shifting framework, the plaintiff

bears the initial burden of establishing a prima facie case, which creates a

rebuttable presumption of discriminatory intent. Flournoy, 851 F.3d at 1339. The

defendant must then rebut that presumption by producing evidence of a legitimate,

nondiscriminatory reason for its action. Id. If the defendant meets this burden of




       3
        Dukes brings his race discrimination claims under both Title VII and § 1981. Because
we evaluate Title VII claims and § 1981 claims under the same analytic framework, we address
Dukes’s claims with the understanding that the same analysis applies to both. Standard v.
A.B.E.L. Servs., Inc., 161 F.3d 1318, 1330 (11th Cir. 1998).
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production, the plaintiff must then establish that the defendant’s proffered reason is

only pretext for unlawful discrimination. Id.; see also Kidd v. Mando Am. Corp.,

731 F.3d 1196, 1202 (11th Cir. 2013).

      The Board, the Board Members, and Fuller do not dispute Dukes established

a prima facie case of race discrimination. And Dukes does not dispute that they

presented legitimate non-discriminatory reasons for hiring Miller and Copes over

him. Instead, they disagree about whether Dukes showed the Board’s reasoning

for hiring Miller and Copes was pretextual.

       A reason for a legitimate employment decision is not pretext “unless it is

shown both that the reason was false, and that discrimination was the real reason.”

Brooks v. Cty. Comm’n of Jefferson Cty., Ala., 446 F.3d 1160, 1163 (11th Cir.

2006) (quoting St. Mary’s Honors Ctr. v. Hicks, 509 U.S. 502, 515, 113 S. Ct.

2742, 2752 (1993)). When pretext turns on the relative qualifications of a plaintiff

and another successful applicant, we do not decide who the defendant employer

should have hired. Kidd, 731 F.3d at 1206. Instead, we look to the qualifications

of the plaintiff and the selected applicant and determine whether the difference

between the two is of “such weight and significance that no reasonable person, in

the exercise of impartial judgment, could have chosen the candidate selected over

the plaintiff.” Id. (quotation marks omitted). We do not reexamine business




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judgments. Id. Our job is to determine “whether the employer gave an honest

explanation to justify its hiring decision.” Id. at 1207 (quotation marks omitted).

      Dukes argues the Board’s proffered reasons for hiring Brian Miller and

Copes over him were pretextual because no reasonable person could have hired

them over him. This argument does not prevail. Both Brian Miller and Copes had

bus driving experience, as did Dukes. The panel decided to recommend Brian

Miller instead because he drove a variety of routes as a full-time substitute bus

driver, and the panel felt this experience made him a better candidate. In contrast,

Dukes drove the same route every day in the same area when he worked for Shelby

County Schools and thus lacked that experience. Although Dukes did have varied

experience when he drove for Shelby County Area Transportation, he did not work

in that position full-time or have the same depth of experience as Brian Miller.

      Similarly, the panel felt Copes’s experience as a principal and assistant

principal made him a better candidate because the transportation supervisor

position was a leadership position. While it is true Dukes also had leadership

experience, he never supervised other bus drivers, like Copes had done in the past.

And although Copes received a written reprimand, his conduct was not so

egregious that a reasonable person could not have hired him over Dukes.

Considering these things, we cannot say that Brian Miller and Copes were so

unqualified that no reasonable person could have selected them over Dukes. If we


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did, we would be questioning the Board’s business judgment as to which

experiences to value most, which we cannot do. See id. at 1207 (rejecting a

plaintiff’s pretext argument where her argument called into question the defendant

company’s business judgment but not the company’s honesty in making hiring

decisions).

                                         B.

      Dukes also argues the circumstances surrounding the Board’s decision to

hire Brian Miller and Copes over him show a convincing mosaic of circumstantial

evidence that would allow a jury to infer intentional discrimination. See Smith,

644 F.3d at 1328.

      In addition to the burden-shifting framework established in McDonnell

Douglas and Burdine, a plaintiff can also establish intentional discrimination by

presenting “a convincing mosaic of circumstantial evidence that would allow a jury

to infer intentional discrimination by the decisionmaker.” Id.; see also Chapter 7

Tr. v. Gate Gourmet, Inc., 683 F.3d 1249, 1256 (11th Cir. 2012) (stating that

summary judgment is not proper if the plaintiff’s circumstantial evidence is

sufficient to raise a reasonable inference that the employer discriminated against

him or her).

      In Smith, the record contained sufficient circumstantial evidence from which

a jury could infer the employer displayed a racially discriminatory animus toward a


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white employee by firing him. Id. at 1347. The employee offered evidence that

his employer used a discipline “matrix” that considered his white race in setting his

discipline. Id. at 1336, 1341. The employee also presented numerous other

incidents where the discipline meted out to African-American employees was

considerably less severe than that to white employees. Id. at 1338–41; see also

Chapter 7, 683 F.3d at 1256 (holding the plaintiff had shown enough

circumstantial evidence to survive summary judgment where the employer’s

human resources director testified the plaintiff’s pregnancy was a “substantial or

motivating factor” in her termination and her employer sent plaintiff’s supervisor a

letter stating that he had violated Title VII when he terminated her).

      In contrast, in Connelly v. Metropolitan Atlanta Rapid Transit Authority,

764 F.3d 1358 (11th Cir. 2014), the plaintiff had not shown sufficient

circumstantial evidence to create a reasonable inference of racial discrimination.

Id. at 1364. The plaintiff—a white male—claimed he was fired because he was

white. Id. at 1359. The only “even remotely race-related” evidence the plaintiff

presented was that his supervisor, who was an African-American woman, referred

to herself in a racist, derogatory manner and socialized with other African-

American employees. Id. at 1364–65.

      The question then is whether Dukes has presented sufficient evidence along

the lines of Smith and Chapter 7 to survive summary judgment. Dukes claims the


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following facts establish a reasonable inference of racial discrimination: (1) the

specially called meeting where Copes was hired despite Aubrey Miller’s absence

and the meeting minutes incorrectly stated Dukes was there; (2) the Board’s

misstatement of Copes’s qualifications in their position statement to the EEOC; (3)

the fact that no African-American people are employed in the Transportation

Department; (4) the removal of the second opening for a transportation route

supervisor in 2012; (5) Bice’s comment about receiving American-American

resumes; and (6) Copes’s hiring despite receiving a reprimand.

      These facts are not sufficient to “present[] a convincing mosaic of

circumstantial evidence that would allow a jury to infer” the defendants decided

not to promote Dukes because of his race. Smith, 644 F.3d at 1328. Dukes

presents no evidence that the Board’s decision to call a special meeting was

racially discriminatory. While the reasons for the special meeting are unknown,

Dukes fails to point to any evidence that the Board intentionally excluded Aubrey

Miller. The record does not reveal why Aubrey Miller was not in attendance.

Neither does Dukes present any evidence that the Board lied about his attendance

to conceal their discriminatory hiring. Similarly, Dukes points to no evidence that

Copes’s reprimand was disregarded so that a white employee could take his spot or

that the 2012 position was removed to avoid hiring him. To the contrary, in both

Smith and Chapter 7, it was clear that the person’s race or protected status was


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considered when making employment determinations. See Smith, 644 F.3d at

1328–40; Chapter 7, 683 F.3d at 1256.

      Neither are we persuaded by Dukes’s statement that the Transportation

Department employs no African-American people. He has not offered any

comparative information that makes this “otherwise anecdotal information

significant” or shows this is a product of race discrimination. Evans v. McClain of

Ga., Inc., 131 F.3d 957, 963 (11th Cir.1997) (“Statistics without any analytical

foundation are virtually meaningless.” (quotation marks omitted)); Wilson v. B/E

Aerospace, Inc., 376 F.3d 1079, 1088 (11th Cir. 2004) (deeming the plaintiff’s

statistical evidence not probative because the plaintiff did not provide any other

relevant information, including the number of people in the plaintiff’s protected

class that expressed interest in the position the plaintiff wanted).

      Dukes also argues that Bice’s comment as a Board Member about African-

American resumes would allow us to infer intentional discrimination. But the

record shows the Board does not receive information about unsuccessful

applicants. The Board receives only information about the Superintendent’s

recommended candidate. And this information is limited to only the job title,

location of the position, and the recommended candidate’s name. Given these

undisputed facts, Bice’s comment does not allow us to infer intentional

discrimination by the Board, the Board Members, or Fuller.


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       The most compelling piece of circumstantial evidence is the erroneous

statements made in the Board’s EEOC position statement. While we have yet to

address the issue directly, the Fifth Circuit, in a case upon which Dukes relies, has

held that erroneous statements made in an EEOC position statement can be

circumstantial evidence of discrimination. Burton v. Freescale Semiconductor,

Inc., 798 F.3d 222, 237 (5th Cir. 2015); see also Miller v. Raytheon Co., 716 F.3d

138, 144 (5th Cir. 2013). But even considering the erroneous EEOC statement, it

alone cannot create a convincing mosaic of circumstantial evidence that would

allow a reasonable jury to infer intentional discrimination. As our precedent in

Smith and Chapter 7 show, considerably more evidence demonstrating that an

employer considered race is required than what Dukes has presented here.4 See

Smith, 644 F.3d at 1328–1340; Chapter 7, 683 F.3d at 1256.

       AFFIRMED.




       4
         Because we can affirm the district court’s grant of summary judgment on any basis
supported by the record, we need not decide whether the Board Members or Fuller are entitled to
qualified immunity. See McCullum v. Orlando Reg’l Healthcare Sys., Inc., 768 F.3d 1135, 1141
(11th Cir. 2014).
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