                                                     [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS
                                                                 FILED
                     FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                                                         ELEVENTH CIRCUIT
                             _____________               NOVEMBER 8, 2006
                                                          THOMAS K. KAHN
                              No. 05-12460                    CLERK
                             _____________

                   D.C. Docket No. 03-01041-CV-M-N


BONNIE BRACKETT,

                                               Plaintiff-Appellant,


versus

ALABAMA DEPARTMENT OF TRANSPORTATION,

                                               Defendant-Appellee.

                              ____________

                Appeal from the United States District Court
                    for the Middle District of Alabama
                              ____________

                           (November 8, 2006)


Before EDMONDSON, Chief Judge, HILL and KRAVITCH, Circuit Judges.


PER CURIAM:
       In this case, African-American appellant Bonnie Brackett (Brackett) appeals

the district court’s grant of judgment as a matter of law under Rule 50 of the

Federal Rules of Civil Procedure1 in favor of appellee Alabama State Department

of Transportation (ALDOT), at the close of evidence at trial. Brackett’s alleged

disparate treatment under Title VII of the Civil Rights Act of 1964, as amended, is

that ALDOT denied her a promotion to the position of civil engineer (CE) in 2000

based upon her race.2 42 U.S.C. § 2000e et seq.

       In granting the Rule 50 motion, the district court concluded that, although

Brackett had arguably established a prima facie case of racial discrimination under

Title VII, she had failed to present any evidence of pretext to rebut ALDOT’s

legitimate non-discriminatory reasons for promoting Jenny Williams (Williams), a


       1
           Fed.R.Civ.Proc. 50 provides in pertinent part:

       If during a trial by jury a party has been fully heard on an issue and there is no
       legally sufficient evidentiary basis for a reasonable jury to find for that party on
       that issue, the court may determine the issue against that party and may grant a
       motion for judgment as a matter of law against that party with respect to a claim
       or defense that cannot under the controlling law be maintained or defeated without
       a favorable finding on that issue.

        The rule “authorizes the court to perform its duty to enter judgment as a matter of law at
any time during the trial, as soon as it is apparent that either party is unable to carry a burden of
proof that is essential to that party’s case.” Advisory Notes, Fed.R.Civ.Proc. 50.
       2
         Brackett specifically complains that she “has been adversely affected by discrimination
involving unfair promotion practices, compensation, assignments, and other terms and conditions
of employment as a result of ALDOT’s failure to remedy systemic employment discrimination
on the basis of race.”

                                                  2
Caucasian female, rather than Brackett to the position. We affirm the judgment of

the district court.

                                                   I.

           Brackett worked for ALDOT as a temporary clerical aid sporadically from

May 1991 to July 1994. In 1994, she accepted permanent employment with

ALDOT as an engineering assistant (EA) in the transportation planning bureau.

Brackett’s immediate supervisor was Emmanuel Oranika, an African-American

male. Her bureau chief was George Ray, a Caucasian male.

       In 1999 and 2000, ALDOT solicited applications to establish a pool of

candidates from which to make current and future appointments to the merit

system CE position. The position required as a minimum a high school diploma

and “eight years experience at the [EA] level.” In response to its solicitations for

the CE position, ALDOT received approximately 20,000 applications.

       In 1999, after serving five years as an EA, three years short of the minimum

requirement, Brackett applied for CE promotion. Oranika allegedly told Brackett

that she would need to submit her application to each of the bureau chiefs of the

particular bureau in which she would like to be considered for employment.3

Brackett submitted her application to her bureau chief, Ray, and to the two bureau

       3
           Oranika testified that he did not recall such a discussion with Brackett.

                                                   3
chiefs of the multimodal and design bureaus. However, it is undisputed that

Brackett failed to follow the requirements set forth in the job advertisement

instructing applicants to send their applications to a particular address.

       As it turned out, apparently none of the three bureau chiefs forwarded

Brackett’s application on to the state personnel department.4 As a result, her

application was not reviewed for minimum qualifications in 1999, she was not

interviewed or hired for the position, and was not notified that the position had

been filled.

       In 2000, Williams was hired as CE in the multimodal bureau. Williams had

been employed as an EA with ALDOT for only two months, but had twelve years

prior employment with ALDOT in two different positions. These other two

positions qualified as “out of class” duties performed, the equivalent of experience

at the EA level.

       Robert Jilla (Jilla), the selecting ALDOT official for the position of CE,

testified that he did not review Brackett’s application and that he selected

Williams because she was the best qualified applicant of the applications that he


       4
         Ray, with forty-six years experience with the department, testified that Brackett was not
qualified for the CE position when she applied; that he was amazed that she had the “audacity” to
apply for the CE position; and that at best, she was only a “marginal employee.” He claimed to
have put her application in his desk drawer, acknowledging that the proper procedure was to send
applications downtown to the state personnel department.

                                                4
reviewed. There was no evidence presented at trial that Jilla even knew, at the

time he selected Williams, that Brackett had applied.

       Ronald Green, ALDOT’s personnel director, testified that Brackett was not

minimally qualified for the position of CE at the time she applied.5 Brackett’s own

witness, Donna Price (Price), Caucasian female, testified at trial that she too was

not selected for CE promotion; that she did not think Williams’ selection was

based on her Caucasian race, nor that Brackett’s non-selection was based upon her

African-American race. When questioned by her own counsel whether Brackett

thought she was not selected for the position because of her race, Brackett replied

that she could not “read [Jilla’s or Ray’s] mind” and “didn’t know what [they]

thought.” On cross examination, Brackett conceded that she failed each bureau’s

examination administered in the CE Minimal Qualifications Booklet.

                                              II.

       Brackett filed a charge of discrimination with the Equal Employment

Opportunity Commission (EEOC) alleging that ALDOT had violated her civil

rights under Title VII.6 In 2003, Brackett filed suit. For purposes of this appeal,

       5
          Green testified at trial that, of the approximate 20,000 applications received by his
office, they then were subjected to a minimum qualification (MQ) screening, before any of those
applicants could, in turn, be recommended for employment.
       6
         In his affidavit, Steve Dukes, personnel analyst for the state personnel department,
stated that Brackett’s application was reviewed for minimum qualification in October 2001 and

                                               5
the district court granted ALDOT’s motion for summary judgment with respect to

Brackett’s 1999 application and denied ALDOT’s motion for summary judgment

with respect to Brackett’s 2000 application. The case proceeded to jury trial on

the 2000 application. At the close of its case at trial, ALDOT moved for judgment

as a matter of law and its motion was granted. This appeal follows.

                                                III.

       The sole issue in this appeal is whether the district court erred in granting

judgment as a matter of law to ALDOT as Brackett did not prove that ALDOT’s

legitimate, non-discriminatory reasons for failing to promote her to CE were

pretextual and racially discriminatory.

                                                IV.

       We review de novo the district court’s grant of a motion for judgment as a

matter of law, applying the same legal standard as the district court. Bianchi v.

Roadway Express, Inc., 441 F.3d 1278, 1282 (11th Cir. 2006).

                                                 V.

       Title VII makes it unlawful for an employer to “discriminate against any

individual with respect to his or her compensation, terms, conditions, or privileges



such review indicated that, at that time, she was still eight months short of the required eight
years experience at the EA level.

                                                  6
of employment, because of such individual’s race.” 42 U.S.C. § 2000-2(a)(1). In

order to establish a prima facie case of disparate treatment in the failure-to-

promote context, a plaintiff must show that (1) she is a member of a protected

class; (2) she applied for and was qualified for the promotion; (3) she was rejected

in spite of her qualifications; and (4) the employer promoted an individual outside

of the plaintiff’s protected class, or else continued to attempt to fill the position.

See Walker v. Mortham, 158 F.3d 1177, 1193 (11th Cir. 1998).

      “[I]f the plaintiff successfully demonstrates a prima facie case, the burden

then shifts to the employer to produce evidence that its action was taken for a

legitimate, non-discriminatory reason.” See Brooks v. County Comm’n of

Jefferson County, 446 F.3d 1160, 1162 (11th Cir. 2006). If the defendant is

successful, the burden shifts back to the plaintiff, who must show that the

employer’s proffered reason is pretext for discrimination. Id.

      We have carefully studied the entire trial transcript, exhibits of parties and

record in this case, including the briefs, and considered the assertions made by

counsel at oral argument. We can find no evidence of racial discrimination in the

record. Brackett offers no evidence that race played any role in the selection

process whatsoever. She merely alleges in a conclusory fashion that ALDOT did

not promote her to CE in 2000 because she is an African-American. See Brooks,

                                            7
446 F.3d at 1162.

       It is clear that Brackett prepared an application and passed it on to Ray and

to at least two other bureau chiefs. Further, it is apparent that Ray, appraising

Brackett’s application as unqualified, put it aside.7 Brackett does not prove that,

in putting her application aside, Ray acted with racially discriminatory motive or

intent. She also failed to follow proper filing procedure in the job advertising

instructions.

       Of the 20,000 applications reviewed by the state personnel department for

minimal qualifications, presumably some were found not qualified and others

found to be qualified. There is no evidence of the racial make up of the

“qualified” or the “not qualified” applicants.

       Jilla was the authorized ALDOT decision maker. Brackett does not prove

that Jilla acted with racially discriminatory motive or intent. Jilla did not

discriminate against Brackett. He made no decision respecting Brackett. He did

not have her application before him. Furthermore, there is no evidence in the

record to indicate that the reason Jilla did not have Brackett’s application before




       7
        The actions of the other two bureau chiefs are not explained, but they must not have
forwarded Brackett’s application either as there is no evidence that it was ever received by state
personnel.

                                                 8
him was based upon discriminatory reasons.8

       Brackett provides no racial analysis of the 20,000 applicants for the job.

How many were white? How many were black? How many whites were actually

selected as CE’s? How many blacks were actually selected as CE’s? 9

       None of the witnesses and none of the documents introduced at trial even

hint at the notion that Brackett wasn’t promoted because she was African-

American. There is no evidence of racial animus. Brackett just wasn’t qualified

for the job. No pretext is shown. See Brooks, 446 F.3d at 1162.

                                               VI.

       Therefore, we conclude that the district court properly granted the motion


       8
         Jilla was not even aware of Brackett’s application until after the appointment of
Williams to the CE position. Therefore, we consider the case of McKennon v. Nashville Banner
Pub’l. Co., 115 S.Ct. 879 (1995). In McKennon, the employment termination was an act of
discrimination violating the Age Discrimination Employment Act (ADEA), 29 U.S.C. § 621 et
seq. The employer was guilty of discrimination at the time of discharge. A valid reason for the
employee’s discharge was discovered long after the employee had been terminated. However, the
employer alleged that after acquired evidence of improper conduct, a valid reason for discharge,
“white washed” the discrimination. The Court held to the contrary. Id.
       Here there is no showing, that, when the employment action was taken, it was tainted by
unlawful discrimination. Jilla is not shown to have based any action upon racial bias. He did not
have Brackett’s application to consider. As it turned out, the application showed Brackett did not
meet the minimum qualifications of CE. There was no prior act of discrimination to be “white
washed.” Id. ALDOT did not undertake to replace unlawful discriminatory action with after-
discovered evidence of Brackett’s lack of minimum qualification. Id.
       9
         There is no evidence of the racial make up of these applicants; of the racial make up of
those eliminated for lack of minimum qualifications; of the racial make up of those forwarded
from the state personnel to the ALDOT decision maker; nor of the racial make up of those
ultimately achieving appointment to CE positions through ALDOT.

                                                9
for judgment as a matter of law in favor of ALDOT because Brackett did not carry

her burden in showing pretext. For the foregoing reasons, we affirm the judgment

of the district court.

       AFFIRMED.




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