                Case: 18-11626        Date Filed: 11/05/2019        Page: 1 of 11


                                                                          [DO NOT PUBLISH]



                  IN THE UNITED STATES COURT OF APPEALS

                             FOR THE ELEVENTH CIRCUIT
                               ________________________

                                      No. 18-11626
                                ________________________

                           D.C. Docket No. 2:16-cv-00842-VEH



ANITA SMITH,

                                                            Plaintiff - Appellant,

versus

VESTAVIA HILLS BOARD OF EDUCATION,

                                                            Defendant - Appellee.

                                ________________________

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

                                      (November 5, 2019)

Before MARCUS, JULIE CARNES and KELLY, * Circuit Judges.

PER CURIAM:


*
 Honorable Paul J. Kelly, Jr., United States Circuit Judge for the Tenth Circuit, sitting by
designation.
              Case: 18-11626    Date Filed: 11/05/2019    Page: 2 of 11


      Plaintiff-Appellant Anita Smith appeals from the district court’s grant of

summary judgment in favor of Defendant-Appellee Vestavia Hills Board of

Education on her employment discrimination claims. Smith v. Vestavia Hills Bd.

of Educ., No. 2:16-CV-842-VEH, 2018 WL 1408537 (N.D. Ala. 2018). Our

jurisdiction to review the judgment arises under 28 U.S.C. § 1291, and we affirm.

                                      I
      Ms. Smith, an African American woman of approximately 52 years of age,

was hired by the Vestavia Hills Board of Education (the “Board”) prior to the start

of the 2013–2014 school year. In her role as secretary/registrar at Vestavia Hills

High School (“VHHS”), Ms. Smith carried out administrative duties typical of an

office receptionist. Her assigned work hours were from 7:00 a.m. to 3:00 p.m. and,

given the high visibility of her desk in the school’s main office, it was imperative

that her station be continuously covered during these hours. When Ms. Smith was

not at her desk, a student office aide or office employee needed to cover for her.

      The Board renewed Ms. Smith’s contract for the 2014–2015 school year and

hired Tim Loveless as the new VHHS principal. At the start of the year, Mr.

Loveless was informed that a number of staff members had tardiness issues. After

reviewing staff timecards, he noticed that Ms. Smith had been consistently late to

work since her employment began. He continued monitoring her timecard, as well

as the timecards of other habitually tardy staff members, throughout the remainder



                                          2
             Case: 18-11626     Date Filed: 11/05/2019   Page: 3 of 11


of the school year. By April 2015, Ms. Smith’s timecard showed that she had been

late to work 87% of the time during her two years of employment.

      In April 2015, Mr. Loveless completed his evaluation of Ms. Smith. He

rated her overall performance as “Meets or Exceeds Requirements,” but noted that

her punctuality needed improvement. Ms. Smith agreed with his assessment yet, in

the 13 days following her evaluation, she was late 10 times. At the end of the

school year, Mr. Loveless recommended that the Board not re-hire Ms. Smith. The

Board subsequently voted to terminate her employment.

      Throughout the remainder of 2015 and into 2016, Ms. Smith applied for a

number of open positions throughout the Vestavia Hills City School System. She

was not hired for any of the positions to which she applied.

      Ms. Smith sued the Board in district court for racial discrimination, in

violation of Title VII of the Civil Rights Act of 1964, as amended (“Title VII”), 42

U.S.C. §§ 2000e, et seq., 42 U.S.C. § 1981, and 42 U.S.C. § 1983; age

discrimination, in violation of the Age Discrimination in Employment Act of 1967,

29 U.S.C. §§ 621–34 (the “ADEA”); and retaliation, in violation of Title VII,

Section 1981, and the ADEA. Only the race and age discrimination claims remain

on appeal.

      The district court granted summary judgment in favor of the Board. As

relevant on appeal, the court analyzed Ms. Smith’s race and age discrimination

                                         3
             Case: 18-11626     Date Filed: 11/05/2019   Page: 4 of 11


claims under the burden-shifting framework set out in McDonnell Douglas Corp.

v. Green, 411 U.S. 792 (1973), and made two specific findings. First, the court

found that Ms. Smith failed to present a prima facie case of racial discrimination as

to her termination because she did not provide proper comparators. Second, the

court determined that Ms. Smith could not fulfill her McDonnell Douglas burden

on her failure-to-hire claim based on impermissible race and age discrimination.

The court stated that, even assuming Ms. Smith had established the necessary

presumption of discrimination, the Board properly rebutted that presumption with

race- and age-neutral rationales for its decision, which Ms. Smith failed to show

were pretextual. Accordingly, the district court found that Ms. Smith was unable

to show that there were genuine issues for trial and granted summary judgment in

the Board’s favor.

      Ms. Smith appeals the district court’s decisions regarding (1) her termination

from the VHHS position based on race discrimination, and (2) the Board’s failure-

to-hire her based on race and age discrimination. She argues that the district court

(a) misapplied summary judgment standards by resolving factual disputes and

drawing inferences in favor of the Board, (b) ignored evidence of disparate

discipline given white comparators who committed similar misconduct, and (c)

improperly relied on the McDonell Douglas framework because it was supplanted




                                          4
              Case: 18-11626     Date Filed: 11/05/2019   Page: 5 of 11


by the 1991 amendments to Title VII, specifically by the provision applying to

mixed motive cases, 42 U.S.C. § 2000e-2(m).

      We review the district court’s grant of summary judgment de novo. Alvarez

v. Royal Atl. Developers, Inc., 610 F.3d 1253, 1263 (11th Cir. 2010). Evidence is

construed in the light most favorable to the non-moving party and, if no genuine

issue of material fact exists, then “the moving party is entitled to judgment as a

matter of law.” Id. at 1263–64. The district court’s judgment may be affirmed for

any reason supported by the record. Lucas v. W.W. Grainger, Inc., 257 F.3d 1249,

1256 (11th Cir. 2001).

                                          II

      Ms. Smith alleges racial discrimination pertaining to her termination under

Title VII and Section 1981. The legal elements of these two claims are identical.

Stallworth v. Shuler, 777 F.2d 1431, 1433 (11th Cir. 1985). To prove

impermissible racial discrimination, an employee must show that an adverse

employment action was related to an employer’s discriminatory animus toward the

employee’s race. Stimpson v. City of Tuscaloosa, 186 F.3d 1328, 1331 (11th Cir.

1999).

      Discrimination may be established through either direct or circumstantial

evidence. Alvarez, 610 F.3d at 1264. At the summary judgment stage, single-

motive cases based on circumstantial evidence are primarily evaluated under the

                                          5
              Case: 18-11626    Date Filed: 11/05/2019    Page: 6 of 11


McDonnell Douglas burden-shifting framework. Quigg v. Thomas Cty. Sch. Dist.,

814 F.3d 1227, 1237 (11th Cir. 2016). This analysis first requires that the

employee establish a prima facie case of discrimination by showing that (1) she is

a member of a protected class; (2) she is qualified for the position; (3) she was

subjected to an adverse employment action; (4) and the employer treated a

similarly situated employee outside of the protected class more favorably. Smith

v. Lockheed-Martin Corp., 644 F.3d 1321, 1325 (11th Cir. 2011). The similarly

situated employee is referred to as the “comparator.” Id. at 1326.

      Once an employee establishes a prima facie case of discrimination, the

burden of production shifts to the employer to articulate and produce evidence of a

legitimate, nondiscriminatory reason for the adverse employment action. Alvarez,

610 F.3d at 1264. If the employer is able to do so, the burden shifts back to the

employee to show that the proffered reason is actually pretext for discrimination.

Id.

      Alternatively, an employee may succeed on a racial discrimination claim

under a mixed-motive theory if she can show that “illegal bias . . . was a

motivating factor for an adverse employment action, even though other factors also

motivated the action.” Quigg, 814 F.3d at 1235 (quoting 42 U.S.C. § 2000e–

2(m)). Mixed-motive claims are not evaluated under McDonnell Douglas. Id. at

1237. Instead, the employee need only show that the (1) employer took an adverse

                                          6
               Case: 18-11626       Date Filed: 11/05/2019       Page: 7 of 11


employment action against her, and (2) a protected characteristic was a motivating

factor for that decision. Id. at 1239.

        Here, the district court properly concluded that Ms. Smith’s claims of racial

discrimination pertaining to her termination proceeded under a single-motive

theory, and thus correctly applied the McDonnell Douglas framework. “Where . . .

a[n employee] puts forth only circumstantial evidence in support of [her]

discrimination claims,” the McDonnell Douglas framework generally applies.

Benjamin v. SNF Holding Co., 602 Fed. Appx. 758, 762 (11th Cir. 2015).
1
    And while circumstantial evidence may also be relevant under a mixed-motive

theory, a plaintiff cannot make only a “passing reference to a mixed-motive

theory” to sufficiently raise the issue. Keaton v. Cobb Cty., No. 08–11220, 2009

WL 212097, at *10 (11th Cir. Jan. 30, 2009). The district court’s analysis was thus

proper for two reasons. First, Ms. Smith did not plead or prove a mixed-motive

case. She does not suggest that unlawful bias, in addition to other factors,

motivated the adverse actions. Rather, she presents a pretext case and claims that

unlawful bias was the true reason for her termination. See Quigg, 814 F.3d at 1235

(differentiating between mixed-motive and single-motive cases). Second, we agree

with the Board that a single-motive case is not transformed into a mixed-motive



1
  Although not precedential, we find the reasoning of this and the other unpublished opinions
cited in this opinion to be instructive. See Fed. R. App. 32.1.
                                               7
              Case: 18-11626    Date Filed: 11/05/2019    Page: 8 of 11


case merely because the employer raises a legitimate, non-discriminatory reason

for its actions. Were the rule as Ms. Smith construed it, every case would be a

mixed-motive case, and the McDonnell Douglas framework would be irrelevant.

Aplee. Br. at 26. Accordingly, we find that the district court correctly analyzed

Ms. Smith’s case under the single-motive, McDonnell Douglas framework.

      We also find meritless Ms. Smith’s contentions that the district court (1)

misapplied summary judgment standards, and (2) improperly relied on the

McDonell Douglas framework in light of the 1991 amendments to Title VII. We

agree with the Board that the district court’s factual findings are supported by the

record, and that inferences arising from disputed facts were construed in Ms.

Smith’s favor. Moreover, we have relied on the McDonnell Douglas framework to

evaluate single-motive employment discrimination claims at the summary

judgment stage for decades. The 1991 amendments to Title VII did not do away

with the single / mixed motive distinction as Ms. Smith claims and we reject her

argument that the “motivating factor test” is the proper analytical framework.

      Further, the district court properly held that Ms. Smith failed to provide a

proper comparator under McDonnell Douglas. “[A] plaintiff asserting an

intentional-discrimination claim under McDonnell Douglas must demonstrate that

she and her proffered comparators were ‘similarly situated in all material

respects.’” Lewis v. City of Union City, 918 F.3d 1213, 1224 (11th Cir. 2019)

                                          8
                Case: 18-11626        Date Filed: 11/05/2019        Page: 9 of 11


[Lewis II] (en banc). Here, none of the comparators offered by Ms. Smith needed

their desks covered at all times throughout the workday. But desk coverage was a

critical component of Ms. Smith’s job. Her desk was in a central location in the

main office, and her job duties included handling all calls and office visitors. It

was so important that someone be at Ms. Smith’s desk from 7:00 a.m. until 3:00

p.m. that another main office employee needed to fill in for her when she was late

to work or on lunch. As Ms. Smith failed to provide a comparator whose role also

required continual desk coverage, and thus a comparator “similarly situated in all

material respects,” the district court properly concluded that she failed to establish

a prima facie case of racial discrimination under McDonnell Douglas. 2

Accordingly, summary judgment in favor of the Board was appropriate.

                                                III

       Ms. Smith also alleged a failure-to-hire claim based on race and age

discrimination. Ms. Smith’s race discrimination claim in the failure-to-hire context

also proceeds under Title VII and Section 1981. Her age discrimination claim

proceeds under the ADEA, which prohibits employment discrimination against

individuals who are at least 40 years of age. 29 U.S.C. § 623(a).



2
 Likewise, we reject Ms. Smith’s argument that, pursuant to Smith v. Lockheed-Martin Corp.,
644 F.3d 1321 (11th Cir. 2011), she has nonetheless presented evidence of discrimination
sufficient to create a jury question. The circumstantial evidence asserted here falls well short of
painting a convincing mosaic of discrimination that would allow a reasonable jury to infer
intentional discrimination. See Smith, 644 F.3d at 1328.
                                                 9
             Case: 18-11626     Date Filed: 11/05/2019   Page: 10 of 11


      The McDonnell Douglas burden-shifting framework applies to failure-to-

hire claims where only circumstantial evidence of race or age discrimination is

alleged. Trask v. Sec’y., Dep’t of Veterans Affairs, 822 F.3d 1179, 1191 (11th Cir.

2016). To prove a prima facie case in the failure-to-hire context, the plaintiff must

demonstrate that (1) she was a member of a protected class; (2) she applied to and

was qualified for an available position; (3) she was not hired; and (4) the position

remained open or was filled by another person outside of her protected class.

EEOC v. Joe’s Stone Crabs, Inc., 296 F.3d 1265, 1273 (11th Cir. 2002).

      While Ms. Smith made a prima facie showing of race and age

discrimination, she ultimately failed to meet her burden under McDonnell Douglas.

Once “a prima facie case is established, the employer has the burden to articulate a

legitimate non-discriminatory reason for the employment decision.” McCaslin v.

Birmingham Museum of Art, 384 Fed. Appx. 871, 874 (11th Cir. 2010). To

survive summary judgment, the plaintiff must then “show that the proffered reason

was a pretext for discrimination.” Id. Here, Ms. Smith failed to show that the

Board’s reasons for hiring other applicants over her were merely pretext for

discrimination. At best, Ms. Smith brought forward evidence that she was more

qualified than other applicants but this evidence alone is not sufficient to show that

the Board’s reasons for hiring other applicants were mere pretext to mask race or

age bias. See Vessels v. Atlanta Indep. Sch. Sys., 408 F.3d 763, 771 (11th Cir.

                                          10
             Case: 18-11626    Date Filed: 11/05/2019   Page: 11 of 11


2005). Accordingly, Ms. Smith failed to fulfill her shifted burden under

McDonnell Douglas and summary judgment in the Board’s favor was appropriate.

                                        IV

      The district court did not err in granting summary judgment in favor of the

Board.

      AFFIRMED.




                                        11
