                                                      [DO NOT PUBLISH]


            IN THE UNITED STATES COURT OF APPEALS
                                                           FILED
                    FOR THE ELEVENTH CIRCUIT   U.S. COURT OF APPEALS
                      ________________________   ELEVENTH CIRCUIT
                                                       JAN 13, 2010
                            No. 09-10270                JOHN LEY
                        Non-Argument Calendar         ACTING CLERK
                      ________________________

                   D. C. Docket No. 07-00162-CV-MEF


CHRIS E. TURNER,


                                                       Plaintiff-Appellant,

                                versus

CITY OF AUBURN,


                                                  Defendant-Third-Party-
                                                      Plaintiff-Appellee,

LARRY LANGLEY, et al.,

                                                              Defendants,

CWH RESEARCH, INC.,
                                                  Third-Party Defendant.
                           ________________________

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

                                 (January 13, 2010)

Before EDMONDSON, PRYOR and FAY, Circuit Judges.

PER CURIAM:

      Plaintiff-Appellant Chris E. Turner, a black male firefighter, appeals the

district court’s grant of summary judgment in favor of his employer, the City of

Auburn (“Auburn”), in Turner’s race discrimination and retaliation suit brought

under Title VII and 42 U.S.C. § 1983. No reversible error has been shown; we

affirm.

      In 1987, black firefighters filed a race discrimination suit against Auburn. As

part of the settlement of that suit (the “Settlement Agreement”), Auburn hired

Plaintiff as a full-time firefighter in 1991. The Settlement Agreement also required

that Auburn use an outside assessment center for filling Lieutenant positions; no

similar requirement applied to the filling of Team Leader positions. For Team

Leader positions, at least before August 2005, a structured interview procedure was

employed; it used applicant interviews and hypothetical scenarios to determine

promotion. Beginning in August 2005, Auburn used a written exam in the Team



                                          2
Leader promotion process: to continue in the Team Leader selection process, an

applicant was required to score a minimum of 70 points on the written exam.1

       Plaintiff and five other firefighters -- the others were white men -- took the

Team Leader exam in August 2005; Plaintiff and one white applicant failed to

achieve the 70-point cutoff score and were not allowed to proceed to the next step

in the promotion process. Approximately six months after administration of the

Team Leader exam, all thirteen Team Leaders (including one who was promoted to

the position after the August 2005 exam) were reclassified as Lieutenants.2 At the

time of the reclassification, the Team Leader and Lieutenant positions were of the

same grade, enjoyed equal pay, and performed the same job responsibilities. One

of the Team Leaders reclassified to Lieutenant was black.

       Plaintiff filed suit complaining that he was discriminated against on the basis

of race when he was not promoted to Team Leader and again when he was not

promoted to Lieutenant in February 2006 when Team Leaders were reclassified as

Lieutenants. Plaintiff also contends that he was retaliated against for being a party

to the 1991 Settlement Agreement and suits in 1996 and 2002, as well as for filing



       1
         Although Plaintiff takes issue with the switch to a written exam, that switch came about
after Plaintiff obtained materials about the structured interview process that compromised
Auburn’s use of that procedure.
       2
       The other applicants who scored above the 70-point cutoff were promoted in May 2006
when additional positions opened at a new fire station.

                                                3
EEOC charges in January 2006. Plaintiff also asserts that Auburn has engaged in a

pattern or practice of racial discrimination that has created a disparate impact

against black firefighters.

       The district court concluded that no reasonable fact finder could find that

Plaintiff had established a prima facie case on his discrimination, retaliation or

disparate impact claims. We agree.

       We review a district court’s grant or denial of summary judgment de novo,

viewing the record and drawing all reasonable inferences in favor of the non-

moving party. Weeks v. Harden Mfg. Corp., 291 F.3d 1307, 1311 (11 th Cir. 2002).

Summary judgment is due to be granted when the evidence, viewed in the light

most favorable to the nonmoving party, presents no genuine issue of fact and

compels judgment as a matter of law. Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett,

106 S.Ct. 2548 (1986).

       To establish a prima facie case of discrimination in a failure to promote

case,3 the plaintiff’s burden is satisfied by showing these things: (1) he is a member

of a protected group; (2) he was qualified for and applied for the promotion; (3) he

was rejected in spite of his qualifications; and (4) the person who received the



       3
        Plaintiff relies on circumstantial evidence to which the three-step burden shifting
framework established in McDonnell Douglas Corp. v. Green, 93 S.Ct. 1817 (1973), and Texas
Dep’t of Cmty Affairs v. Burdine, 101 S.Ct. 1089 (1981), applies.

                                             4
promotion was not a member of the plaintiff’s protected group and had lesser or

equal qualifications. See Wilson v. B/E Aerospace, Inc., 376 F.3d 1079, 1089 (11 th

Cir. 2004).

      Plaintiff failed to establish a prima facie case: although he was qualified to

(and did) apply for the Team Leader position, Auburn required a minimum score of

70 points on the Team Leader exam to proceed in the selection process. Plaintiff’s

sub-70 point score disqualified him for promotion to Team Leader.

      And even if we were to accept Plaintiff’s argument that his qualifications to

apply for the position satisfy prima facie case requirements, he failed to show that

a less or equally qualified person was promoted instead of him (the fourth prima

facie case element) and failed to show that Auburn’s proffered reasons for not

promoting him -- his sub-70 point score -- were pretextual. That Plaintiff believed

in the superiority of his qualifications -- that his seniority and experience should

trump his poor performance on the exam -- is not determinative; in reviewing a

Title VII plaintiff’s qualifications, we focus on the employer’s requirements and do

not second-guess the employer’s business judgment. See, e.g., Combs v.

Plantation Patterns, 106 F.3d 1519, 1543 (11th Cir. 1997) (“a plaintiff may not

establish that an employer’s proffered reason is pretextual merely by questioning

the wisdom of the employer’s reason, at least not where, as here, the reason is one



                                           5
that might motivate a reasonable employer.”). 4

       To establish a prima facie case of retaliation, a plaintiff must present

evidence showing that (1) he engaged in statutorily protected expression, (2) the

employer took action that would have been materially adverse to a reasonable

employee or job applicant, and (3) some causal relation existed between the two

events. See Pennington v. City of Huntsville, 261 F.3d 1262, 1266 (11 th Cir.

2001). The district court determined that Plaintiff established no prima facie case

on the Team Leader or Lieutenant claims: no reasonable fact finder could find that

Plaintiff established a causal link between his protected expression and denial of

the Team Leadership promotion; and no reasonable fact-finder could find that

Auburn was aware of the protected activity of Plaintiff that was close in time to the

Lieutenant reclassification.

       Even if we were to assume arguendo that Plaintiff satisfied his burden of

establishing a prima facie case of retaliation, Plaintiff failed to raise a genuine issue

of material fact on pretext. No reasonable fact finder could find that Auburn’s

proffered legitimate, nonretaliatory reasons for its decisions were not what actually

       4
         Plaintiff also failed to show that he was qualified for the Lieutenant position. No person
was reclassified as a Lieutenant who was not already a Team Leader. Plaintiff failed too to show
that a less or equally qualified person was promoted instead of him and failed to show that
Auburn’s proffered reasons for not reclassifying him -- only Team Leaders were reclassified --
were pretextual. As the district court observed, whether the reclassification violated the
Settlement Agreement negotiated some fifteen years earlier -- as Plaintiff argues -- is not an
issue requiring resolution in this discrimination suit.

                                                 6
motivated Auburn’s conduct and were, instead, pretext for retaliation. See Corbitt

v. Home Depot U.S.A., Inc., 573 F.3d 1223, 1248 (11 th Cir. 2009).

       To establish a prima facie case of disparate impact discrimination, a plaintiff

must show (1) a significant statistical disparity among members of different racial

groups; (2) a specific facially-neutral employment policy or practice; and (3) a

causal nexus between that specific policy or practice and the statistical disparity.

See Cooper v. Southern Co., 390 F.3d 695, 724 (11th Cir. 2004) (overruled on

other grounds by Ash v. Tyson Foods, Inc., 126 S.Ct. 1195 (2006)).

       Plaintiff proffered no statistical evidence in support of his disparate impact

claim: he failed to show that the challenged practices resulted in a statistical

disparity among members of different racial groups; and he failed to compare the

racial composition of persons in the labor pool qualified for the positions at issue

with those persons actually holding those positions. And again, even if we were to

assume arguendo that Plaintiff established a prima facie case of disparate impact

discrimination, Auburn proffered evidence -- unrebutted by Plaintiff -- that its

promotion procedures were job-related and consistent with its business needs.

       We have reviewed all claims of error advanced by Plaintiff;5 we conclude


       5
         Plaintiff also advanced a claim pursuant to section 1983. Because discrimination claims
under section 1983 have the same elements of proof and analytical framework as those falling
under Title VII, see Rioux v. City of Atlanta, GA, 520 F.3d 1269, 1275 n.5 (11th Cir. 2008)
(“Title VII and section 1983 claims have the same elements where the claims are based on the

                                               7
that Auburn’s motion for summary judgment was due to be granted.

        AFFIRMED.




same set of facts”), Plaintiff’s failure to establish a Title VII violation is dispositive of his
section 1983 claim.

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