          Case: 19-10616   Date Filed: 02/03/2020   Page: 1 of 10


                                                        [DO NOT PUBLISH]



           IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 19-10616
                        Non-Argument Calendar
                      ________________________

                  D.C. Docket No. 3:17-cv-00086-CDL



MARYANN BRUNO,

                                                           Plaintiff-Appellant,

                                   versus

GREENE COUNTY SCHOOLS, et al.,

                                                                    Defendants,

GREENE COUNTY SCHOOL DISTRICT,

                                                         Defendant-Appellee.

                      ________________________

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

                           (February 3, 2020)
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Before WILSON, GRANT, and ANDERSON, Circuit Judges.

PER CURIAM:

      Maryann Bruno alleges that the Greene County School District did not hire

her as an assistant principal because of her race and age. The district court

disagreed and granted summary judgment against her Title VII and age

discrimination claims. Because Bruno has failed to demonstrate that the School

District’s proffered reasons for not hiring her were a pretext for discrimination, we

affirm.

                                          I.

      Bruno is a white female in her fifties. Beginning in 2013, she served as the

dean of students at the Union Point STEAM Academy, a charter school in Greene

County, Georgia. During the relevant timeframe, the charter school was unique

within the Greene County School District and was granted the “maximum

flexibility allowed by law” to achieve certain academic goals. The school operated

with an autonomous Local Governing Board that was empowered to exercise

substantive control over its personnel, finances, curriculum, and day-to-day

operations. Although granted substantial flexibility, the charter school operated

under the governance of the Green County School District.

      In October 2014, the Local Governing Board recommended abolishing the

dean of students position and creating an assistant principal position instead. The


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School District approved the decision. Although Bruno performed many of the

duties of an assistant principal in her role as the dean of students, she was told that

she would have to reapply for the position of assistant principal. Bruno applied but

was not selected.

       The School District asserts that, unlike the dean of students position, the

assistant principal position required an educational leadership certificate from the

Professional Standards Commission (the state entity responsible for the

certification of educators). The job description specifically mentions this

requirement, although it also states—under the list of requirements—that the

“Board of Education and the Superintendent may accept alternative [sic] to one of

the above requirements.” Bruno did not have a leadership certificate, so she was

transferred to a middle school art teacher position. She alleges that the School

District’s January 2015 decision to hire a younger African American candidate to

fill the assistant principal position was predicated on discrimination based on her

race and age. She brought claims against the School District under Title VII of the

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

Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 623(a)(1). 1


1
  Bruno initially brought claims against other defendants. She also challenged other personnel
decisions and raised claims of gender discrimination and retaliation in violation of Title VII and
the Georgia Whistleblower Act of 1993, O.C.G.A. § 45-1-4. She has expressly abandoned those
other claims on appeal, however, and we address only her claims of race and age discrimination
regarding the assistant principal position.

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      In defense, the school district provided two nondiscriminatory reasons for its

hiring decision. First, the person hired for the assistant principal position—

Yolanda Curry-Hutchins—possessed a leadership certificate while Bruno did not.

Second, the Local Governing Board recommended hiring Curry-Hutchins. The

School District’s practice was to accept recommendations from the Local

Governing Board with respect to personnel decisions.

      The district court granted the School District’s motion for summary

judgment. Assuming that Bruno established a prima facie case of discrimination,

the court determined that she failed to show that both of the School District’s

proffered nondiscriminatory reasons were pretextual. Therefore, it concluded that

she failed to carry her burden.

                                          II.

      We review the grant of summary judgment de novo, applying the same legal

standards as the district court. Alvarez v. Royal Atlantic Developers, Inc. 610 F.3d

1253, 1263 (11th Cir. 2010). The question is whether the evidence, viewed in the

light most favorable to the nonmoving party, demonstrates that there is no genuine

issue of material fact and that the moving party is entitled to judgment as a matter

of law. Id. at 1264. A non-moving party cannot survive summary judgment by

presenting “a mere scintilla of evidence” supporting her position and must instead

present evidence from which a reasonable jury could find in her favor. Brooks v.


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

quotation marks omitted). We “may affirm the District Court on any basis

supported by the record.” Miller v. Harget, 458 F.3d 1251, 1256 (11th Cir. 2006).

                                         III.

      Bruno argues that the district court improperly granted summary judgment

to the School District because she presented evidence rebutting and discrediting the

reasons offered for her nonselection. We disagree.

      Title VII makes it unlawful for an employer to refuse to hire “or otherwise to

discriminate against any individual with respect to his compensation, terms,

conditions, or privileges of employment, because of such individual’s race.” 42

U.S.C. § 2000e-2(a)(1). An employee can prove intentional discrimination using

direct, circumstantial, or statistical evidence. Alvarez, 610 F.3d at 1264. When the

plaintiff relies on circumstantial evidence for a Title VII claim, we apply the

burden-shifting framework articulated in McDonnell Douglas Corp. v. Green, 411

U.S. 792 (1973). Id.

      The ADEA, in turn, prohibits employers from firing employees who are

more than forty years old because of their age. Liebman v. Metro. Life Ins. Co.,

808 F.3d 1294, 1298 (11th Cir. 2015). The McDonnell Douglas framework also

applies to ADEA claims based on circumstantial evidence. Id.




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      Under the McDonnell Douglas framework, if a plaintiff establishes a prima

facie case of discrimination, the defendant must articulate a legitimate,

nondiscriminatory reason for its actions. See Texas Dep’t of Cmty. Affairs v.

Burdine, 450 U.S. 248, 254 (1981). “The defendant need not persuade the court

that it was actually motivated by the proffered reasons. It is sufficient if the

defendant’s evidence raises a genuine issue of fact as to whether it discriminated

against the plaintiff.” Id. (internal citation omitted). If a nondiscriminatory reason

is articulated, the plaintiff must show that the employer’s proffered reason is

actually a pretext for discrimination. Alvarez, 610 F.3d at 1264. The “ultimate

burden of persuasion remains on the plaintiff to show that the defendant

intentionally discriminated against her.” Id.

      To establish pretext, the plaintiff must show that the proffered reason was

false and that the real reason was discrimination. St. Mary’s Honor Ctr. v. Hicks,

509 US. 502, 515 (1993). The plaintiff may accomplish this by producing

“sufficient evidence to allow a reasonable finder of fact to conclude that the

[employer’s] articulated reasons were not believable.” Brooks, 446 F.3d at 1163.

An employee must meet the employer’s proffered reason “head on” and rebut it.

Chapman v. AI Transp., 229 F.3d 1012, 1030 (11th Cir. 2000) (en banc). If the

employer proffers more than one legitimate, nondiscriminatory reason, the plaintiff

must rebut each reason to survive a motion for summary judgment. Id. at 1037. If


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the plaintiff fails to show pretext, we will affirm the grant of summary judgment on

that ground. EEOC v. Total Sys. Servs., 221 F.3d 1171, 1177 (11th Cir. 2000).

       Here, like the district court, we assume that Bruno has established her prima

facie case and move to the second step of the McDonnell Douglas analysis. On

this point, the School District has posited two legitimate, non-discriminatory

reasons for not promoting Bruno to the assistant principal position: (1) she did not

have a leadership certificate; and (2) the Local Governing Board recommended a

different candidate. Bruno argues that she has presented evidence that rebuts both

reasons. 2

       Bruno devotes most of her brief to discrediting the School District’s reliance

on the Local Governing Board’s recommendation. She argues that, because the

School District failed to articulate why the board recommended Curry-Hutchins, it

failed to meet its burden of articulating a nondiscriminatory reason for its




2
  One of Bruno’s arguments is that the district court erroneously considered the deposition
testimony of the School District’s corporate representative under Rule 30(b)(6). She argues that
because he testified to matters outside of his personal knowledge, the School District failed to
introduce admissible evidence of its nondiscriminatory reasons for failing to hire her. Her
argument is unpersuasive. An organization’s Rule 30(b)(6) witness may “testify about
information known or reasonably available to the organization.” Fed. R. Civ. P. 30(b)(6). And
even if Bruno’s characterization of the testimony were correct, as the Sixth Circuit recently
explained, “evidence considered at the summary judgment stage need not be ‘in a form that
would be admissible at trial,’ as long as the evidence could ultimately be presented in an
admissible form.” See Lossia v. Flagstar Bancorp, Inc., 895 F.3d 423, 430–31 (6th Cir. 2018)
(citing Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986)).

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decision.3 We disagree. The Greene County Board of Education’s minutes show

that the School District relied on the recommendation when selecting Curry-

Hutchins as the assistant principal. 4 And a charter school’s expressed preference is

certainly the type of reason that would “motivate a reasonable employer,” such as

the School District, to hire one administrator instead of another. See Alvarez,

610 F.3d at 1265–66. In the face of such a reason, the burden is on Bruno to show

pretext.5 “A reason is not pretext for discrimination unless it is shown both that the

reason was false, and that discrimination was the real reason.” Brooks, 446 F.3d at

1163 (internal quotation marks and citation omitted). Here, Bruno has failed to

show either. She has pointed to no evidence suggesting that the Local Governing

Board did not actually recommend Curry-Hutchins, that such a recommendation

was motivated by discriminatory animus, or that the School District’s reliance on


3
 Although Bruno initially sued the Union Point STEAM Academy as well, she later agreed to
dismiss them.
4
  This was the customary practice. The School District’s corporate representative testified that
the Local Governing Board was given broad discretion to choose “who they thought would be
the best candidate,” and that he could not remember the School Board ever failing to approve a
hiring recommendation.
5
  In this Circuit, we recognize a “cat’s paw” theory of discrimination, which may be “established
if the plaintiff shows that the decisionmaker followed [a] biased recommendation without
independently investigating the complaint against the employee.” Stimpson v. City of
Tuscaloosa, 186 F.3d 1328, 1332 (11th Cir. 1999). Although this theory is not explicitly
advanced in this case, we note that it would not help Bruno in any event. In such cases, the
burden is on the plaintiff to prove that the recommender’s discriminatory animus caused the
adverse employment action. Llampallas v. Mini-Circuits, Lab, Inc., 163 F.3d 1236, 1248 (11th
Cir. 1998). Here, in the absence of any evidence from Bruno that the Local Governing Board’s
recommendation was born of discriminatory animus, she cannot establish this required causal
link.

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the recommendation was a pretext for its own discrimination. As the district court

explained, the absence of evidence as to the local board’s rationale is not evidence

that the recommendation was motivated by Bruno’s race or age. In the face of a

complete lack of evidence that race or age motivated the hiring recommendation,

Bruno cannot rebut this proffered nondiscriminatory reason and has not carried her

burden of proof.

       The School District also explained that it hired Curry-Hutchins because she

held a leadership certificate whereas Bruno did not. The possession of an

additional certification is a reason that would motivate a reasonable employer to

choose one candidate over another. In an attempt to show pretext, Bruno points to

evidence suggesting that, in practice, a leadership certificate was not always

required for someone to be selected for the position of assistant principal. While

we recognize that this conflicts with the School District’s assertion that this was a

prerequisite, the resolution of this factual dispute is unnecessary. Even if Bruno is

entirely correct, and the School District did not require the certificate, it is still

entitled to prefer a candidate who has a certificate over one who does not. The

evidence shows that Curry-Hutchins had a leadership certificate, and Bruno did

not. This is a plainly nondiscriminatory reason upon which to base a hiring

decision and Bruno has not met her burden of providing evidence that (1) the

reason was false and (2) discrimination was the real reason.


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AFFIRMED.




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