            Case: 18-11386   Date Filed: 11/27/2018   Page: 1 of 12


                                                          [DO NOT PUBLISH]

              IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT
                        ________________________

                              No. 18-11386
                          Non-Argument Calendar
                        ________________________

                    D.C. Docket No. 2:15-cv-02169-MHH

SHARON D. MARTIN,

                                                             Plaintiff-Appellant,

versus

SHELBY COUNTY BOARD OF EDUCATION,
AUBREY MILLER,
President of the Board of Education in his official and
individual capacity,
PEG HILL, Vice President of the Board of Education in her official
and individual capacity,
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 capacity,
KEVIN MORRIS, Member of the Board of Education in his official and
individual capacity, et al.,

                                                         Defendants-Appellees.

                        ________________________

                 Appeal from the United States District Court
                    for the Northern District of Alabama
                        ________________________
                            (November 27, 2018)
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Before MARCUS, WILSON and HULL, Circuit Judges.

PER CURIAM:

      Sharon Martin appeals from the district court’s grant of summary judgment

in favor of the Shelby County Board of Education (“Board”) in her race

discrimination law suit brought under Title VII and 42 U.S.C. § 1983 against

certain Board members in their official and individual capacities. Her complaint

alleged that the Board intentionally discriminated against her on the basis of her

race when it promoted Karenann George, a less qualified, white candidate, for the

position of registrar/data manager at Vincent Middle/High School, instead of her.

On appeal, Martin says that the district court erred in granting summary judgment

against her because: (1) she rebutted the Board’s proffered non-discriminatory

reasons for not promoting her, showing them to be pretextual; (2) she properly

made out a mixed-motive claim; and (3) she properly sued the Board members in

their official and individual capacities. After careful review, we affirm.

      We review de novo a summary judgment determination, viewing all

evidence in the light most favorable to the non-moving party. Owen v. I.C. Sys.,

Inc., 629 F.3d 1263, 1270 (11th Cir. 2011). The party moving for summary

judgment bears the initial burden of establishing the absence of a dispute over a

material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The burden then

shifts to the non-moving party, who may not rest upon mere allegations, but must


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set forth specific facts showing that there is a genuine issue for trial. Fed. R. Civ.

P. 56(e); Eberhardt v. Waters, 901 F.2d 1578, 1580 (11th Cir. 1990).

      First, we are unpersuaded by Martin’s argument that the Board’s proffered

non-discriminatory reasons for not promoting her were pretextual, and, thus, that

the district court erred in granting summary judgment on her Title VII claim. Title

VII prohibits employers from discriminating “against any individual with respect

to [her] compensation, terms, conditions, or privileges of employment, because of

[her] race.” 42 U.S.C. § 2000e–2(a)(1). In a failure-to-promote scenario, a plaintiff

may establish a prima facie case of discrimination by showing that: (1) she was a

member of a protected class; (2) she applied and was qualified for a position for

which the employer was accepting applications; (3) despite her qualifications, she

was not promoted; and (4) the position remained open or was filled by another

person outside of her protected class. Trask v. Sec’y, Dept. of Vet. Affairs, 822

F.3d 1179, 1191 (11th Cir. 2016). If a prima facie case is presented, the burden

shifts to the defendant to articulate a race-neutral basis for the employment action

at issue; if the defendant carries this light burden, the burden returns to the plaintiff

to prove the defendant’s stated reason for its conduct is pretext for discrimination.

See Flowers v. Troup Cty., Ga. Sch. Dist., 803 F.3d 1327, 1336 (11th Cir. 2015).

      A plaintiff can show pretext either by offering evidence that the employer

more likely than not acted with a discriminatory motive, or that its proffered


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reasons are not credible. Alvarez v. Royal Atl. Developers, Inc., 610 F.3d 1253,

1265 (11th Cir. 2010). To do so, the plaintiff must demonstrate “such weaknesses,

implausibilities, inconsistencies, incoherencies, or contradictions in the employer’s

proffered legitimate reasons for its action that a reasonable factfinder could find

them unworthy of credence.” Id. (quotation omitted). A plaintiff usually cannot

prove pretext merely by showing that she was more qualified than the person hired.

Springer v. Convergys Customer Mgmt. Grp. Inc., 509 F.3d 1344, 1349 (11th Cir.

2007).   “[A] plaintiff must show that the disparities between the successful

applicant’s and h[er] own qualifications were 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. That’s because a court does not “sit as a

super-personnel department.” Chapman v. A1 Transp., 229 F.3d 1012, 1030 (11th

Cir. 2000) (en banc) (quotation omitted). To be clear, a reason is not pretext

“unless it is shown both that the reason was false, and that discrimination was the

real reason.” Brooks v. Cnty. Comm’n of Jefferson Cnty., Ala., 446 F.3d 1160,

1163 (11th Cir. 2006) (quotation omitted; emphases in original).

      As an alternative to the burden-shifting framework, a plaintiff may show that

the evidence, viewed in the light most favorable to her, “presents a convincing

mosaic of circumstantial evidence that would allow a jury to infer intentional

discrimination by the decisionmaker.” Smith v. Lockheed Martin Corp., 644 F.3d


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1321, 1328 (11th Cir. 2011) (footnote omitted). Either way, if the circumstantial

evidence is sufficient to raise a reasonable inference that the employer

discriminated against the plaintiff, summary judgment is improper. Chapter 7 Tr.

v. Gate Gourmet, Inc., 683 F.3d 1249, 1256 (11th Cir. 2012). In all cases, a

plaintiff retains the ultimate burden of persuading the court that she has been the

victim of intentional discrimination. Flowers, 803 F.3d at 1336.

      Here, the district court did not err in holding that Martin had not raised a

genuine issue of material fact about pretext. As the record reveals, the Board

provided a race-neutral reason for its decision to hire George, a Caucasian, for the

registrar/data manager position instead of Martin -- the interviewers decided that

they wanted someone with excellent people skills and a customer service mindset,

and the “consensus among the [interviewers] was that Ms. George would have

done the best job and was the best choice.” The undisputed record also indicates

that the Board asked all the candidates for the position the same questions, made

notes of their answers, did not use numerical ratings, and, that the panel members

looked favorably on George’s prior experience as a substitute in the front office, as

well as George’s demonstrated organizational skills and ability to multitask.

      To establish that the Board’s stated reason for its conduct was pretext for

discrimination, Martin primarily relies on evidence comparing her qualifications

relative to George, the panel’s focus on criteria not emphasized in the registrar job


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description, and the interview panel’s decision to scrap a numerical rating system

that was provided on the interview forms, and instead to use “a whole

comprehensive approach” to score the candidates.         Under the comprehensive

approach, the panel discussed each candidate’s strengths and weaknesses, any

personal knowledge the interviewers had of the candidate, and the overall

impression of the candidate after each candidate’s interview.

      While “[a]n employer’s deviation from its own standard procedures may

serve as evidence of pretext,” Hurlbert v. St. Mary’s Health Care System, Inc., 439

F.3d 1286, 1299 (11th Cir. 2006), “[i]t is difficult to hold that a practice which

affects applicants of all races in the same manner is actually designed to conceal a

racially discriminatory motive,” Brown v. American Honda Motor Co., 939 F.2d

946, 952 (11th Cir. 1991). The record shows that the comprehensive approach was

used equally on all of the candidates, and that Sandra Gibson, a Caucasian

candidate with similar or even superior qualifications to Martin, was equally

disadvantaged by the behavior of the Board’s interview panel. Brown, 939 F.2d at

952. Martin had worked for Vincent Middle/High School around 16 years, had

extensive data entry experience, and was very familiar with the INOW software

used by the registrar; similarly, Gibson also had worked at the school for 16 years,

had extensive data entry skills and was familiar with the INOW software.

Nevertheless, none of the panelists ranked either Gibson or Martin in their top two.


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Further, the interview panel’s decision not to consider whether the candidates

provided answers during the interview similar to the suggested answers also

affected Gibson in the same way that it affected Martin. Because applicants of all

races -- and specifically both a white and black candidate -- were affected in the

same manner by the panel’s choices during the interview process, we cannot say

that this evidence creates a genuine issue of fact about whether the panel’s process

was “actually designed to conceal a racially discriminatory motive.” Id.

      Martin claims that the district court misapplied Brown, but we disagree. In

Brown, we determined that a plaintiff had failed to show pretext where the

defendant’s deviation from its manual affected two white candidates in the exact

same way that it affected the plaintiff, who was black. Id. We noted that although

“Honda’s expressed preference for existing dealers did not appear in the manual,

Honda did demonstrate that 10 of the last 13 new sites were filled with existing

dealers.” Id. But Brown did not conclude that a practice had to be consistent with

unwritten policy if it were to be discounted as evidence of pretext. We said that

adherence to customary practices, even if unwritten, reinforces the notion that an

apparent deviation is not discriminatory; we never said, however, that the practice

would otherwise be pretextual. Id.

       Nor do the remaining “inconsistencies” that Martin points to support the

claim that she created a genuine issue of fact about whether she was discriminated


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against on the basis of race. For example, Martin notes that an interview panel

member could not remember specific details about George’s interview and failed

to copy his second choice on an e-mail telling the candidates he was deliberating

over whom he should recommend. While this evidence may suggest that the

interviewer made mistakes, it shows little else, and nothing about discriminatory

intent; Martin also mischaracterizes some of this evidence. As for her arguments

based on George’s lesser qualifications and on the defendant’s shifting reason for

hiring George -- first, her technical skills, and later, her people skills -- again, those

inconsistencies affected Gibson in the same way as Martin. Id.

      Martin adds that an interview panel member expressed concern that Martin

might be “intimidating,” and, we acknowledge that seemingly benign words may

be evidence of discriminatory intent in certain contexts. See Ash v. Tyson Foods,

Inc., 546 U.S. 454, 456 (2006). However, that interviewer explained that Martin

came across as “very monotone and flat,” like another candidate who was white.

Martin has not given us any evidence suggesting that the “context, inflection, tone

of voice, local custom, and historical usage” of the interview’s words were not

benign, and we cannot say that they were infected with any racial animosity. Id.

As for Martin’s testimony that the Board historically has not hired African-

Americans in support staff positions in the front office at Vincent Middle High

School, this assertion standing alone does not establish that the Board’s decision to


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hire George was racially motivated. As we’ve said, while statistics can be helpful

in showing pretext, data “without an analytic foundation, are virtually

meaningless.” Brown, 939 F.2d at 952. Martin did not provide evidence about the

number of front office support staff vacancies at Vincent Middle High School or

the race of the individuals who applied for the positions.

      On this record, we simply cannot say that Marin has raised a genuine issue

of fact that the Board’s proffered reason for not promoting her was both “false, and

that discrimination was the real reason.” Brooks, 446 F.3d at 1163 (quotation

omitted; emphasis in original). Accordingly, the district court did not err in

concluding that Martin had failed to show a question of discriminatory intent.

      We also find no merit to Martin’s argument that the district court erred in

granting summary judgment against her on her mixed-motive claim. In order to

survive summary judgment on a mixed-motive claim, a plaintiff must show that:

(1) the defendant took an adverse employment action against the plaintiff; and (2) a

protected characteristic was a motivating factor for the defendant’s adverse

employment action. Quigg v. Thomas Cty. Sch. Dist., 814 F.3d 1227, 1239 (11th

Cir. 2016). “In other words, the court must determine whether the plaintiff has

presented sufficient evidence for a reasonable jury to conclude, by a preponderance

of the evidence, that [her protected characteristic] was a motivating factor for [an]

adverse employment decision.” Id. (quotation omitted).


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      Here, as we’ve already explained, none of the circumstantial evidence

Martin has presented, taken separately or together, shows by a preponderance that

the Board’s decision to hire George over Martin was the result of racial bias. Id.

Thus, the district court did not err by awarding summary judgment to the Board.

      Finally, we find no merit to Martin’s claim that she properly sued the Board

members in their official and individual capacities. “[W]hen an officer is sued

under Section 1983 in his or her official capacity, the suit is simply another way of

pleading an action against an entity of which an officer is an agent.” Busby v. City

of Orlando, 931 F.2d 764, 776 (11th Cir. 1991) (quotation and footnote omitted).

The analysis of a disparate treatment claim is the same whether that claim is

brought under Title VII, § 1981 or § 1983. Rice–Lamar v. City of Ft. Lauderdale,

Fla., 232 F.3d 836, 843 n.11 (11th Cir. 2000).

      The Equal Protection Clause ensures a right to be free from intentional

discrimination based upon race. Williams v. Consolidated City of Jacksonville,

341 F.3d 1261, 1268 (11th Cir. 2003). To establish a § 1983 equal protection race

discrimination claim, a plaintiff “must prove discriminatory motive or purpose.”

Cross v. State of Ala., State Dep’t of Mental Health & Mental Retardation, 49 F.3d

1490, 1507 (11th Cir. 1995). Further, to establish § 1983 liability, a plaintiff must

show proof of an affirmative causal connection between a government actor’s acts

or omissions and the alleged constitutional violation, which may be established by


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proving that the official was personally involved in the acts that resulted in the

constitutional deprivation. Brown v. City of Huntsville, Ala., 608 F.3d 724, 737

(11th Cir. 2010).

      When a claim involves an adverse employment action that occurs based on a

biased recommendation by a party without decision-making authority, a plaintiff

can establish liability under the “cat’s paw” theory. See Stimpson v. City of

Tuscaloosa, 186 F.3d 1328, 1331-32 (11th Cir. 1999). Under that theory, if the

decision-making party followed the biased recommendation without independently

investigating the complaint -- essentially acting as a rubber stamp of the biased

recommendation -- then the recommender’s discriminatory animus is imputed to

the decision-maker. See id.

      Once again, as we’ve held, Martin has not presented evidence creating

triable issues of fact with respect to her Title VII claim against the Board.

Consequently, the defendants, in their official capacities, were entitled to summary

judgment on Martin’s § 1983 claim. Rice–Lamar, 232 F.3d at 843 n.11. Further,

the Board members were also entitled to summary judgment on Martin’s claim in

their individual capacities because Martin has not shown discriminatory motive on

the part of the Board’s individual members in accepting the interview panel’s

recommendation to hire George. Indeed, the uncontroverted record reflects that

the Board was never provided information on the candidates’ race at all. Thus,


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even if Martin had been deprived of a constitutional right, she has not shown that

the Board members, in their individual capacities, were personally involved in the

acts that resulted in the constitutional deprivation. City of Huntsville, Ala., 608

F.3d at 737. Finally, Martin has not shown that the panel was influenced by racial

bias, and there is, therefore, nothing to impute to the Board itself. Stimpson, 186

F.3d at 1331-32. Accordingly, we affirm.

      AFFIRMED.




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