           Case: 14-11330   Date Filed: 11/13/2014   Page: 1 of 22


                                                          [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 14-11330
                         Non-Argument Calendar
                       ________________________

                D.C. Docket No. 2:12-cv-00279-WKW-CSC



THOMAS W. HOLMES,

                                                            Plaintiff-Appellant,

                                  versus

ALABAMA BOARD OF PARDONS & PAROLES,

                                                           Defendant-Appellee,

WILLIAM W. WYNNE, JR., et al.,

                                                                     Defendants.

                       ________________________

                Appeal from the United States District Court
                    for the Middle District of Alabama
                      ________________________
                           (November 13, 2014)

Before HULL, JORDAN and JULIE CARNES, Circuit Judges.

PER CURIAM:
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       Thomas W. Holmes, a white male Probation and Parole Officer, appeals the

grant of summary judgment to his employer, the Alabama Board of Pardons and

Paroles (“Board”), in his suit alleging, inter alia, violations of Title VII of the Civil

Rights Act, 42 U.S.C. § 2000e-2, when the Board failed to promote him to Senior

Officer based on his race and gender or to District Manager based on his race. On

appeal, Holmes argues that the district court erred by: (1) granting summary

judgment on his Senior Officer claims; and (2) finding that he had failed to exhaust

his administrative remedies as to his District Manager claim. 1 After review, we

affirm.

                             I. FACTUAL BACKGROUND

A.     Promotion of Probation and Parole Officers

       Because Holmes’s claims involve the Board’s failure to promote him to

Senior Officer or District Manager positions, we first review the Board’s

promotion process.

       Under Alabama’s merit system, an entry-level Probation and Parole Officer

(or PO I) with two years of service is eligible for promotion to Senior Officer (or




       1
        On appeal, Holmes does not challenge the district court’s order dismissing: (1) all of his
claims against the individual defendants; (2) his claims under the Age Discrimination in
Employment Act, 42 U.S.C. §§ 1981 and 1983, and state law; and (3) his Title VII hostile work
environment claim. Accordingly, Holmes has abandoned any issues with respect to these claims.
See Timson v. Sampson, 518 F.3d 870, 874 (11th Cir. 2008).
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PO III) or District Manager (or PO IV). 2 To be promoted, the officer must apply

with the State Personnel Department, which administers tests to all eligible

applicants. The State Personnel Board then places the applicants on a promotional

register, or “certificate of eligibles,” and groups the applicants in “bands” based on

their test scores. Applicants within a band have statistically similar test scores and

are considered equally ranked within the applicant pool. This promotional register

lists the top ten “eligibles” and all applicants who tied the tenth highest eligible.

Applicants are ranked both statewide and by preferred county. An applicant may

share his statewide or county rank with other applicants.

       Because the register for Senior Officer promotions is “continuous,” officers

wishing to be considered for those promotions must retake the Senior Officer test

periodically to avoid falling off the register. Consequently, names and rankings on

the Senior Officer register frequently change as old names receive promotions or

fall off and new names are added.

       The District Manager classification has a separate test and promotional

register. Unlike the Senior Officer register, the District Manager register is

“closed,” meaning the State Personnel Department opens the register for only a



       2
         In late 2011, the Board changed the promotion protocol to require two years of service in
the Senior Officer classification to be eligible for promotion to District Manager. At the time of
the events giving rise to Holmes’s claims, however, an entry-level officer with two years of
service could apply for promotion to District Manager.
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short period to accept applications for a vacancy and then closes the register again

until there is another vacancy.

      The Board had a promotion protocol, effective August 15, 2009, for

promoting officers to supervisor or manager positions within the agency. The

2009 protocol contains a list of objective criteria that must be considered in making

promotional decisions, including the candidate’s: (1) band number; (2) advanced

degrees; (3) years in law enforcement, social services, or rehabilitation services;

(4) unique objectively-based qualifications; (5) supervisory experience; and (6)

past three years of performance appraisals, disciplinary actions, reprimands, and

written warnings. The 2009 protocol also contains a list of subjective criteria,

including: (1) the candidate’s audits and statistical reports; (2) the last three years

of supervisors’ evaluations; (3) additional written input from the current

supervisor; (4) the candidate’s writing sample and resume; and (5) the interview.

The evaluating committee or person has direct access to each candidate’s personnel

file and may be provided “candidate packets” of information “to use in

deliberating.”

      Under the 2009 protocol, once the Board identifies a Senior Officer or

District Manager vacancy, the Board requests a certified promotional register from

the State Personnel Department, which the Board uses to fill the vacancy. A

person or committee interviews applicants from the register and then completes


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two worksheets of notes evaluating the candidates based on the objective and

subjective criteria. The criteria are not weighted. Each evaluator has discretion in

assigning weight to the criteria, and the worksheets are merely tools used to

evaluate each interviewed candidate. After evaluating the candidates and

deliberating, the person or committee recommends a candidate for promotion up

the chain of command. Ultimately, the Board votes on the recommendation and

has discretion in making the final promotion decision. 3

B.     Holmes’s Employment

       In February 2001, Holmes began working as a Probation and Parole Officer,

most of that time in the field office in Montgomery, Alabama, where he lives. In

March 2009, Holmes moved to the Montgomery field office’s Pardon Unit, where

he primarily processed pardon applications. In this assignment, Holmes did not

ordinarily perform routine probation and parole officer field work, such as

supervising offenders, maintaining field notes, participating in arrests, attending

revocation hearings, preparing PSI reports or parole plans, collecting fees and

arrearages, collecting DNA samples, and performing drug tests. On June 16, 2013,


       3
          The record also contains a different, 2010 promotion protocol, effective December 6,
2010, applicable to all classifications of Board employment. Under the 2009 protocol, all
candidates on the register were interviewed and under the 2010 protocol, all candidates on the
register were “considered,” but only some were interviewed. The 2010 protocol does not contain
lists of objective and subjective criteria that must be considered.
       For summary judgment purposes, we assume that the 2009 protocol, which was specific
to probation and parole officers, still applied.
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Holmes was promoted to Senior Officer in the Montgomery Central Office’s

Pardon Unit.

      Throughout his employment, Holmes received generally positive

evaluations, although a few evaluations noted issues with timeliness and attention

to detail. Additionally, Holmes’s personnel file contains some disciplinary actions

during the years before he moved to the Pardon Unit, including: (1) a 2003

reprimand for failing to accurately report an offender’s sentence end date, which

led to three months of wrongful incarceration; (2) notes in his 2003 evaluation

about the failure to comply with arrest procedures; (3) a 2004 written reprimand

for improper use of an assigned cell phone, making an insubordinate statement,

and conducting field activities without the presence of another officer, in violation

of office policy; and (4) a 2006 written warning for making an unauthorized

request for the criminal history of a supervisor.

C.    Senior Officer Promotions

      In either 2004 or 2005, Holmes first took the Senior Officer test and began

applying for promotion. Thereafter, Holmes periodically re-took the Senior

Officer test when he received notice that he had dropped off the register. At one

point, Holmes was on the register statewide, but later (Holmes does not know

when), he changed his desired locations to counties around Montgomery.




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      Holmes claims that he was consistently passed over for Senior Officer

promotions in favor of officers who were African-American or female. Holmes’s

peers frequently commented to him that Holmes was “not the right color” for

promotion, but Holmes did not hear this comment from supervisors in his chain of

command. Holmes believed he was denied promotions based on his race and

gender because he “continually” saw less experienced and less educated African-

American and female officers get promoted rather than him. Holmes also believed

there was a conspiracy within upper management to ensure African-American and

women officers were promoted to Senior Officer positions.

      State Personnel Department records indicate that, between January 2005 and

April 2013, a total of 95 Probation and Parole Officers were promoted to Senior

Officer throughout the state. Of those 95 promotions, 58 officers were white, and

62 officers were male. In other words, during the time Holmes was applying for

Senior Officer promotions, white and male officers received more Senior Officer

promotions than anyone else.

      It is undisputed that Holmes did not receive a promotion until June 2013.

Before 2009, however, it is unclear how often Holmes’s name appeared on the

Senior Officer register, whether and when he was available for promotion

statewide, and how often he was considered or interviewed for promotion.

According to State Personnel Department records, between January 2009 and


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August 2011, 36 Senior Officer promotions occurred. During that time, Holmes’s

name appeared on only six Senior Officer promotional registers. In other words,

during the period for which there are records, Holmes was eligible for less than

twenty percent of the Senior Officer promotions.

       Holmes’s appeal involves only three Senior Officer promotions in the

Montgomery field office, all of which occurred in 2011. 4 Holmes appeared on the

register, and was considered and interviewed, for each of these three promotions,

but ultimately was not selected. Instead, the Board promoted Elizabeth Planer, a

white woman, and Reginald Carter, an African-American man, on April 27, 2011,

and Christopher Causey, an African-American man, on June 30, 2011. 5

       State Personnel Department records reflect that Planer, Carter, Causey, and

Holmes all fell within the same “band” on the promotional registers and thus were

equally ranked. While Holmes had a masters degree, Carter had a law degree, and

       4
        The district court concluded that these three Senior Officer promotions were the only
promotions that occurred within 180 days of Holmes’s filing of his charge with the Equal
Employment Opportunity Commission (“EEOC”) and thus were the only failure-to-promote
claims that were not time-barred. See 42 U.S.C. § 2000e-5(e)(1) (requiring an employee in a
non-deferral state such as Alabama to exhaust administrative remedies by filing a charge of
discrimination with the EEOC within 180 days of the alleged unlawful employment practice).
On appeal, Holmes does not challenge this ruling, and we do not address it.
       5
         Holmes heard rumors within the agency that some African-American and female
officers received help preparing their answers to the take-home Senior Officer test and
complained to upper management, the State Personnel Department, and the Alabama Attorney
General’s Office. After a 2010 internal affairs investigation, a new Senior Officer test was
introduced in March 2011. Holmes did not present any evidence that the three successful
promotees for Holmes’s claims (Carter, Causey, or Planer) received help with respect to their
2011 promotions and admitted in his deposition that he did not know whether any of them had
cheated on the Senior Officer test.
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Causey and Planer had bachelors degrees. Holmes had more years of experience at

the agency than Carter, Causey, or Planer.

D.    District Manager Promotions

      At some point (Holmes does not remember when), Holmes took the District

Manager test and began to apply for District Manager promotions. Although it

was theoretically possible to be promoted directly to District Manager without first

being promoted to Senior Officer, Holmes was unaware of any such promotions.

Between January 2005 and April 2013, 19 officers were promoted to District

Manager, 12 of whom were white and 13 of whom were male.

      In October 2008, Holmes’s name appeared on a newly created promotional

register for a District Manager position, along with 67 other candidates. Ten

candidates were listed in band 01. Holmes and 42 other candidates were listed in

band 02, and the remaining 15 candidates were listed in band 03. Thus, at that

time, Holmes was “ranked” eleventh in the state, but he was tied for that position

with 41 other band 02 applicants. On November 26, 2008, Stephanie Woodruff, a

black woman who also was on band 02, received the promotion.

      According to a printout from the State Personnel Board’s website, in August

2010, Holmes’s name appeared on a “current” promotional register for a District

Manager position. The printout listed Holmes’s statewide rank as tenth, but did

not indicate how many other candidates were on the register. State Personnel


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Department records indicate, however, that no District Manager promotions

occurred in 2010. In July and August 2011, three white males were promoted to

District Manager positions. Holmes appeared on those promotional registers, and

was considered for the three promotions, but was not selected.

E.    EEOC Charge

      Shortly thereafter, in late July and early August 2011, Holmes wrote two

letters to the EEOC claiming race and gender discrimination in the Board’s failure

to promote him to a Senior Officer position and age discrimination in failing to

promote him to any of the three 2011 District Manager positions. On August 9,

2011, Holmes filed a formal charge of discrimination based on these claims.

F.    Post-Charge District Manager Promotion

      On September 13, 2011, after Holmes filed his EEOC charge, a third District

Manager promotion occurred. Specifically, Roderick Chambers, a black male

Senior Officer was promoted to District Manager in the Montgomery field office.

The record does not reflect whether Holmes appeared on the register for this

District Manager position. In a subsequent letter to the EEOC, Holmes cited the

Board’s failure to promote him to Chambers’s District Manager position as another

example of his employer promoting a “younger, less educated, and less

experienced” candidate than Holmes.




                                         10
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      After the EEOC issued a right to sue letter, Holmes filed this action in the

district court. The district court granted the Board’s summary judgment motion

with respect to both the Senior Officer and District Manager failure-to-promote

claims. As to the Senior Officer claims, the district court concluded that Holmes

failed to present evidence establishing his prima facie case. As to the District

Manager claims, the district court found that Holmes claimed only age

discrimination in the EEOC and that his race and gender discrimination claims

were “beyond the scope of the EEOC charge.”

               II. THREE SENIOR OFFICER PROMOTIONS

A.    McDonnell-Douglas Framework

      Where, as here, a Title VII plaintiff uses circumstantial evidence to prove

discrimination, we apply the burden-shifting approach articulated in McDonnell

Douglas Corporation v. Green, 411 U.S. 792, 93 S. Ct. 1817 (1973). Brown v.

Ala. Dep’t of Transp., 597 F.3d 1160, 1181 (11th Cir. 2010). Under this approach,

the plaintiff must first make a prima facie case of discrimination. Alvarez v. Royal

Atlantic Developers, Inc., 610 F.3d 1253, 1264 (11th Cir. 2010). If the plaintiff

does so, a presumption of discrimination arises, and the burden of production, but

not persuasion, shifts to the employer to articulate a legitimate, non-discriminatory

reason for the promotion decision. Kidd v. Mando Am. Corp., 731 F.3d 1196,

1205 (11th Cir. 2013). If the employer meets its burden, the burden shifts back to


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the plaintiff to produce evidence that the proffered reason was a pretext for

discrimination. Springer v. Convergys Customer Mgmt. Group, Inc., 509 F.3d

1344, 1347 (11th Cir. 2007). While the intermediate burdens of production shift

back and forth, “[t]he ultimate burden of persuading the trier of fact that the

defendant intentionally discriminated against the plaintiff remains at all times with

the plaintiff.” Id.

B.     Prima Facie Case

       To state a prima facie case, the plaintiff must show that: (1) he is a member

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

rejected despite his qualifications; and (4) the position was filled with an individual

outside the protected class. Walker v. Mortham, 158 F.3d 1177, 1186, 1193 (11th

Cir. 1998). In Walker, this Court concluded that the plaintiff need not establish as

part of the prima facie case that the promoted employee was equally or less

qualified than the plaintiff. Id. at 1193. Since Walker, some of this Court’s

decisions state that the fourth element does require the plaintiff to show that the

promoted employee was equally or less qualified. See, e.g., Brown v. Ala. Dep’t

of Transp., 597 F.3d 1160, 1174 (11th Cir. 2010); Wilson v. B/E Aerospace, Inc.,

376 F.3d 1079, 1089 (11th Cir. 2004); Lee v. GTE Florida, Inc., 226 F.3d 1249,

1253 (11th Cir. 2000). We need not resolve this conflict because, even assuming

arguendo that Holmes satisfied his prima facie case, Holmes failed to rebut the


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Board’s legitimate, non-discriminatory reasons for not promoting him. See

Cuddeback v. Fla. Bd. of Educ., 381 F.3d 1230, 1235-36 (11th Cir. 2004)

(explaining that we may affirm the district court’s grant of summary judgment on

any legal ground supported by the record, regardless of whether the district court

relied on that ground).

B.    Pretext

      To show pretext, the plaintiff cannot recast the employer’s proffered reason,

but must meet the reason “head on and rebut it.” Chapman v. AI Transport, 229

F.3d 1012, 1030 (11th Cir. 2000) (en banc). The plaintiff must show 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). At this

stage, a “new level of specificity” applies, and 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.” Rioux v. City of Atlanta, 520

F.3d 1269, 1275 (11th Cir. 2008); see also Earley v. Champion Int’l Corp., 907

F.2d 1077, 1081 (11th Cir. 1990) (explaining that the plaintiff must “present

concrete evidence in the form of specific facts which show that the defendant’s

proffered reason is mere pretext. Mere conclusory allegations and assertions will




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not suffice”). If the employer proffers more than one reason, the plaintiff must

rebut each of them to survive summary judgment. Chapman, 229 F.3d at 1037. 6

       The Board proffered two reasons for its decisions not to promote Holmes to

the three Senior Officer positions—Holmes’s disciplinary record and his

specialization in pardon work in the Montgomery field office. Specifically,

although Holmes’s disciplinary matters were not a bar to his promotion, they

influenced his supervisors’ recommendations regarding whether to promote him.

The Board further explained that while Holmes’s specialization in pardon work

was a negative factor for promotion to a field office supervisor, it was a positive

factor in 2013, when Holmes was promoted to Senior Officer within the

Montgomery Central Office Pardon Unit.

       Holmes attempted to rebut the Board’s reasons by showing that he was more

qualified than the promoted employees because he had a masters degree and had

more years of experience as a parole and probation officer. Holmes pointed to the

Board’s 2009 promotion protocol, which listed among its objective criteria the

candidate’s advanced degrees and years in law enforcement.




       6
        We review de novo the grant of summary judgment, construing the facts and drawing all
reasonable inferences from those facts in the light most favorable to the non-moving party.
Moton v. Coward, 631 F.3d 1337, 1341 (11th Cir. 2011). Summary judgment is proper “if the
movant shows that there is no genuine dispute as to any material fact and the movant is entitled
to judgment as a matter of law. Fed. R. Civ. P. 56(a).
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       Holmes also relied upon his own declaration, in which he provided

generalized information about Senior Officer promotions by race and gender

between 2007 and 2011. Although Holmes’s declaration claimed that he “learned”

this information from “examination of the discovery” materials the Board had

produced, he did not submit any of those discovery materials to the district court. 7

The Board did submit some of those discovery materials, including State Personnel

Department’s records of Senior Officer and District Manager promotions, which

demonstrated that Holmes’s data was in fact inaccurate. Holmes further stated his

own conclusory opinion that he was more qualified than all the individuals

promoted because he was “more highly ranked and had superior education and

experience.”

       Holmes’s declaration did not specifically address the qualifications of

Causey, Carter, and Planer. Holmes claimed that “Carter was promoted with

disciplinary warnings and reprimands in his file,” but did not provide any details or

attach any supporting documents. Holmes made no claims about Causey’s and

Planer’s disciplinary record and did not provide information about the three

       7
         Specifically, Holmes’s declaration stated that, based on his “examination of the
discovery in this case,” he had “learned that 23 officers were awarded promotions” to Senior
Officer between January 2007 and August 2011, and that “22 of these 23 promotions were
awarded to officers who were nonwhite and/or female.” Holmes further stated that he learned
“[f]rom [his] examination of the applications of these officers,” that “none of the 23 officers
selected for promotion has more experience that [sic] [he] did, and 12 had less than three years’
experience” and that “18 of the 23 officers selected for promotion . . . did not possess a graduate
degree.” But, Holmes did not submit any of the discovery he claimed to have reviewed.


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promoted officers’ work experience or areas of specialization. Further, Holmes did

not dispute his own disciplinary record or that, as a pardons specialist, he

ordinarily did not perform field duties.

      By focusing on his years of experience and advanced degree, Holmes merely

quarreled with the wisdom of the Board’s reasons for not promoting him in 2011

and did not address those reasons “head on.” See Chapman, 229 F.3d at 1030.

Additionally, Holmes’s declaration made only conclusory assertions that the

officers receiving promotions were less qualified, which is not sufficient to show

pretext. Instead, Holmes needed to present “concrete evidence in the form of

specific facts” rebutting the Board’s reasons. See Earley, 907 F.2d at 1081; see

also Leigh v. Warner Bros., Inc., 212 F.3d 1210, 1217 (11th Cir. 2000) (explaining

that “conclusory allegations without specific supporting facts have no probative

value” in opposing summary judgment). For example, Holmes did not present

evidence that Causey, Carter, and Planer had similar disciplinary records or that

they also specialized in pardon work. Indeed, Holmes failed to present almost any

evidence at all of the three promoted employees’ qualifications, whether linked to

the Board’s proffered reasons or not. Thus, Holmes failed to show that Causey,

Carter, and Planer were less qualified than him, much less that there was a

disparity in qualifications “of such weight and significance” that a reasonable




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person could not have chosen Causey, Carter, and Planer over Holmes. See Kidd,

731 F.3d at 1206.

      Holmes’s declaration also identified three officers (other than Causey,

Carter, or Planer) who were promoted to Senior Officer positions even though they

either had a disciplinary record or performed pardon work. Holmes argues that the

fact that these other officers were promoted shows the Board’s reasons lack

credibility. The Board, however, did not claim that a disciplinary record or pardon

work is a bar to promotion, just that they influenced his supervisors’

recommendations of him for the three relevant Senior Officer promotions.

      Furthermore, evidence of comparators who are treated more favorably

cannot show pretext unless those comparators are “similarly situated to the plaintiff

in all relevant respects.” See Rioux, 520 F.3d at 1280 (quotation marks and

alterations omitted). Holmes offered no other information about his proffered

comparators except that they had a disciplinary record or performed pardon work

and thus did not show they were “similarly situated” to him in all relevant respects.

Accordingly, Holmes did not present evidence from which a reasonable jury could

conclude that the Board’s two proffered reasons were false and a pretext for

discrimination.

      Finally, Holmes’s argument that the district court improperly shifted the

burden of proof to him at summary judgment lacks merit. Consistent with Federal


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Rule of Civil Procedure 56(c)(1), the Board both cited to record evidence showing

the presence of some undisputed facts and also pointed out that Holmes’s own

evidence was insufficient to carry his ultimate burden to prove by a preponderance

of the evidence that the failure to promote him to the three Senior Officer positions

was discriminatory. See Fed. R. Civ. P. 56(c)(1)(A)-(B) & advisory committee’s

notes (2010 Amendments, Subdivision (c)); see also Celotex Corp. v. Catrett, 477

U.S. 317, 322-323, 106 S. Ct. 2548, 2552 (1986) (explaining that the moving party

need not affirmatively negate the opponent’s claim with affidavits or other

materials, but instead may meet its summary judgment burden by showing there is

a lack of evidence to support the essential elements the non-moving party must

prove at trial); Clark v. Coats & Clark, Inc., 929 F.2d 604, 608 (11th Cir. 1991)

(explaining that, per Celotex, “under certain circumstances the movant may meet

its Rule 56 burden without negating an element of the non-moving party’s claim

and that under such circumstances it is sufficient to point to materials on file that

demonstrate that the party bearing the burden of proof at trial will not be able to

meet that burden”).

                   III. DISTRICT MANAGER PROMOTION

A.    Exhaustion of Administrative Remedies

      Holmes claimed that the Board denied him the September 2011 District

Manager promotion—the one awarded to Chambers—based on race. The district


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court concluded that Holmes had failed to exhaust this race-based failure-to-

promote claim in the EEOC. We agree.

      Before a plaintiff may file a Title VII action, he must first exhaust his

administrative remedies by filing a charge of discrimination with the EEOC.

Gregory v. Ga. Dep’t of Human Res., 355 F.3d 1277, 1279 (11th Cir. 2004).

While we must liberally construe an EEOC charge that was prepared without

assistance of counsel, a plaintiff’s civil complaint remains “limited by the scope of

the EEOC investigation which can reasonably be expected to grow out of the

charge of discrimination.” Id. at 1280 (quotation marks omitted). We have

cautioned “that allegations of new acts of discrimination are inappropriate” for a

post-charge judicial complaint. Id. at 1279-80.

      Here, Holmes’s raced-based District Manager claim did not fall within the

scope of his EEOC charge for two reasons. First, this claim alleged a discrete act

of discrimination—a promotion—that occurred after Holmes filed his EEOC

charge. See Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 114, 122 S. Ct.

2061, 2073 (2002) (“Each incident of discrimination . . . constitutes a separate

actionable ‘unlawful employment practice.’”); Gregory, 355 F.3d at 1279 (stating

that it is inappropriate to allege new acts of discrimination). Specifically, Holmes

filed his charge on August 9, 2011, but Chambers’ promotion did not occur until

one month later, on September 13, 2011.


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      Second, Holmes’s communications with the EEOC emphasized only age

discrimination with regard to District Manager promotions, and not race

discrimination. For example, in the two pre-charge letters Holmes sent to the

EEOC, he advised, inter alia, that he had recently interviewed for two District

Manager positions, but that two white males who were younger and had less

experience had been selected for these positions. Holmes stated that “therefore, I

am making another claim of age discrimination.”

      In his formal EEOC charge, Holmes checked the boxes for discrimination

based on race, color, sex, and age, but he claimed African-American candidates

were selected over him only with respect to the Senior Officer position. As to the

District Manager position, Holmes’s charge stated, “I was also denied a promotion

to the position of district manager and a less experienced, less educated, younger

officer was promoted.”

      Later, in a September 8, 2011 post-charge letter, Holmes again discussed the

District Manager promotions, stating that since July 2011, he was passed over four

times, and that “[a]t least two of these recent promotions to District Manager were

to less educated, less experienced, and younger candidates than me .” With respect

to Roderick Chambers’s promotion in particular, Holmes stated that Chambers

“happens to be black,” but also claimed Chambers was “less educated, less

experienced, and younger than me.” Holmes asserted that “in the absence of clear


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definitive promotional policy, my employer promotes those younger, less

educated, and less experienced than myself.” Holmes further pointed out that

Chambers’s promotion to District Manager discriminated against both him and an

African-American female officer in her fifties, signifying that age, not race, was

the alleged discriminatory motive in the decision.

      Given that Holmes’s own communications with the EEOC stressed age, not

race, discrimination in the District Manager promotions, we cannot say a race

discrimination claim could reasonably be expected to arise from his complaints

about the District Manager promotions. Accordingly, the district court correctly

concluded that any race discrimination claim as to the District Manager position

was outside the scope of Holmes’s EEOC charge and properly declined to consider

such a claim.

B.    Prima Facie Case

      However, even assuming arguendo that Holmes’s passing reference to

Chambers’s race in his September 8, 2011 letter exhausted Holmes’s race

discrimination claim, the district court still properly granted summary judgment on

this claim because Holmes did not present evidence that he was “qualified for” the

District Manager position Chambers received. To establish a prima facie claim of

failure to promote, the plaintiff must present evidence that he “applied for and was

qualified for” the promotion. Brown, 597 F.3d at 1174. An employee is “qualified


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             Case: 14-11330     Date Filed: 11/13/2014   Page: 22 of 22


for” a promotion if the employee “offers evidence that [he] satisfied an employer’s

objective qualifications.” Kidd, 731 F.3d at 1204 (quotation marks omitted).

      In Holmes’s case, it is undisputed that to be eligible for promotion to an

open District Manager position, a probation and parole officer must take the

District Manager test and appear on the State Personnel Board’s promotional

register, or “certificate of eligibles.” In his deposition, Holmes admitted he took

the District Manager test only once, but he could not remember when he did so.

Holmes submitted a printout from the State Personnel Board’s website indicating

that he was on a “current” District Manager promotional register on August 18,

2010. The decision to promote Chambers, however, did not occur until September

2011, one year later. And, District Manager promotional registers are closed rather

than continuous, meaning they do not remain open to fill later vacancies.

Therefore, Holmes did not present evidence that he was listed on the particular

promotional register used to fill, and thus was eligible for, the District Manager

position that Chambers received.

      For all these reasons, we affirm the district court’s entry of summary

judgment in favor of the Board on Holmes’s failure to promote claims.

      AFFIRMED.




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