                                                                     [DO NOT PUBLISH]

                      IN THE UNITED STATES COURT OF APPEALS

                                   FOR THE ELEVENTH CIRCUIT           FILED
                                    ________________________ U.S. COURT OF APPEALS
                                                                   ELEVENTH CIRCUIT
                                            No. 11-10799           NOVEMBER 22, 2011
                                        Non-Argument Calendar          JOHN LEY
                                                                         CLERK
                                      ________________________

                                 D.C. Docket No. 1:08-cv-03317-JOF

KAREN MADDOX-JONES,

llllllllllllllllllllllllllllllllllllllll                         Plaintiff - Appellant,

    versus

BOARD OF REGENTS OF UNIVERSITY SYSTEM OF GEORGIA,
d.b.a. Clayton State University,

llllllllllllllllllllllllllllllllllllllll                         Defendant - Appellee.

                                     ________________________

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

                                           (November 22, 2011)

Before EDMONDSON, WILSON and KRAVITCH, Circuit Judges.

PER CURIAM:

         Karen Maddox-Jones (Maddox-Jones) filed suit against Defendants Board

of Regents of the University System of Georgia d/b/a Clayton State University
(CSU) claiming employment discrimination under Title VII. Maddox-Jones

appeals the district court’s grant of summary judgment in favor of CSU. On

appeal, Maddox-Jones argues that the district court erred when it found that she

had not demonstrated a prima facie case of race discrimination. She also asserts

that the district court erred in deciding that CSU’s non-discriminatory reason for

the adverse action against her was not pretextual.1 After reviewing the parties’

briefs and the record, we affirm the district court’s decision to grant CSU’s

summary judgement.

                                              I

       Maddox-Jones, an African American female, worked at CSU as a

continuing education instructor in computer related classes. Prior to Alexander

Federov (Federov) becoming the coordinator for the continuing education classes,

Maddox-Jones was assigned to teach classes each quarter, ranging from nine to

twenty classes.. However, when Federov became coordinator in the Winter 2007

term, Maddox-Jones’s assigned classes decreased to seven for that term and

thereafter she was not assigned to teach any classes.

       When Federov became coordinator, he began to re-work the continuing



       1
          The district court also granted summary judgment to CSU on Maddox-Jones’s
retaliation claim, but Maddox-Jones did not appeal that decision.

                                             2
education program. He hired nine new instructors (five of whom were African

American) and revised the curriculum. He also began to more evenly distribute

the classes to all of the continuing education instructors to ensure that it was easy

to cover classes if an instructor was unable to teach. As Maddox-Jones said in her

own deposition, Federov told her that she was teaching too many classes and it

would be difficult to replace her if she was in a car accident and died.2

       After receiving only seven classes to teach (four of which were cancelled),

Maddox-Jones complained to Brenda Findley, CSU’s Human Resources Director,

and Dale Bower, the Director of the Continuing Education Department at CSU.

She informed Findley and Bower that she received less classes than in previous

semesters because she was being discriminated against on the basis of her race.

       In Spring 2007, Federov did not assign Maddox-Jones to teach any classes.

Maddox-Jones claims that she contacted Federov’s office twice and left messages

with the receptionist. Federov claims that he may have called Maddox-Jones back

once, but never heard from her again. Either way, Federov says that he did not

assign Maddox-Jones to any classes because she did not contact him about

teaching for the Spring 2007 quarter. There is no evidence in the record that


       2
         Maddox-Jones and Federov seemed to have a less than amicable relationship. Along
with being rather blunt about her possibly dying in a car accident, Federov neglected to invite her
to a meeting and allegedly did not return her phone calls.

                                                 3
Maddox-Jones ever requested to be assigned classes in the Summer or Fall 2007

quarters.

         In August 2007, Janet Winkler signed the Personnel Action Form

terminating the school’s relationship with Maddox-Jones. While Winkler could

not remember the exact reason she signed the form, she did testify that for

administrative purposes, the Human Resources Department prefers to terminate

the employment of instructors who are no longer teaching classes. Winkler also

testified that the termination was not punitive and that if a person terminated in

this way wanted to start teaching again, she could.

                                          II

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

all evidence and drawing all reasonable inferences in favor of the non-moving

party. Owen v. I.C. Sys., Inc., 629 F.3d 1263, 1270 (11th Cir. 2011). Summary

judgment is appropriate where “there is no genuine issue as to any material fact

and . . . the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a);

see also Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S. Ct. 2548, 2552

(1986). Therefore, we consider all facts in the light most favorable to Maddox-

Jones.

         The moving party, here CSU, bears the initial burden of showing the

                                          4
absence of a dispute about a material fact. Fickling v. United States, 507 F.3d

1302, 1304 (11th Cir. 2007). If the moving party meets its burden, “the

nonmoving party must present evidence beyond the pleadings showing that a

reasonable jury could find in its favor.” Id. A disputed fact is material if the fact

“might affect the outcome of the suit under the governing law.” Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 2510 (1986). A dispute is

genuine “if the evidence is such that a reasonable jury could return a verdict for

the nonmoving party.” Id. “Speculation does not create a genuine issue of fact.”

Cordoba v. Dillard’s, Inc., 419 F.3d 1169, 1181 (11th Cir. 2005) (citation omitted)

(internal quotation marks omitted). Likewise, a plaintiff cannot defeat summary

judgment by relying upon conclusory assertions. See Holifield v. Reno, 115 F.3d

1555, 1564 n.6 (11th Cir. 1997).

                                          III

      Title VII makes it unlawful for an employer to “fail or refuse to hire or to

discharge any individual, or otherwise discriminate against any individual with

respect to his compensation, terms, conditions, or privileges of employment,

because of such individual’s race [or] color . . . .” 42 U.S.C. § 2000e-2(a)(1). The

plaintiff bears the burden of proving that the employer discriminated against him

unlawfully. Hinson v. Clinch County, Ga. Bd. Of Educ., 231 F.3d 821, 827 (11th

                                          5
Cir. 2000).

      Where, as here, the plaintiff relies on circumstantial evidence of

discrimination, the case is analyzed under the burden-shifting framework set out in

McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04, 93 S. Ct. 1817, 1824-

25 (1973). Burke-Fowler v. Orange County, Fla., 447 F.3d 1319, 1323 (11th Cir.

2006). Under the McDonnell Douglas framework, the plaintiff bears the initial

burden of presenting sufficient evidence of her prima facie case. 411 U.S. at 802,

93 S. Ct. at 1824. Once the plaintiff shows sufficient evidence of a prima facie

case, the burden then shifts to the defendant “to articulate some legitimate,

nondiscriminatory reason” for the adverse employment action. Id. Then the

burden shifts to the plaintiff to show that the reason is pretextual. Id. at 804.

                                          IV

      We apply different formulations of the elements of a prima facie case,

depending on the facts of the individual case. The prima facie case for disparate

treatment is our basic standard. This requires the plaintiff to show that: (1) she is a

member of a protected class, (2) she is quailed for the job, (3) she suffered an

adverse employment action, (4) and her employer treated similarly situated

employees outside the protected class more favorably. Burke-Fowler, 447 F.3d at

1323. Alternatively, a case involving a demotion requires a showing of the first

                                           6
three factors above, and the plaintiff must show that she was replaced by a person

outside her protected class rather than that an employee outside her class was

treated more favorably. Rioux v. City of Atlanta, 520 F.3d 1269, 1275-76 (11th

Cir. 2008); Hinson, 231 F.3d at 828.3

       Maddox-Jones’s case does not neatly fit into any of above standards, but she

argues that the demotion standard best fits her case. The Magistrate Judge agreed

because by teaching fewer classes, Maddox-Jones earned less money; therefore

demoted. The District Court did not agree with this analysis; nonetheless, the

District Court analyzed the case under the demotion standard. Usually our cases

that involve demotions involve more than simply a decrease in pay. See generally

Hinson, 231 F.3d at 828-29 (involving a plaintiff demoted from the position of

principal to a teacher position which had less responsibility and prestige but the

same amount of pay); Rioux, 520 F.3d at 1273 (involving a plaintiff demoted from

Deputy Fire Chief to Battalion Chief, requiring less responsibility and prestige).

Here, while Maddox-Jones did suffer a decrease in pay due to the decrease in the

number of classes taught, she retained the same title, prestige, and responsibility.


       3
          Maddox-Jones also argues for the first time on appeal that the prima facie case for
failure to hire is the appropriate standard to evaluate her claims. Even if this was not the first
time she raised this issue, the failure to hire standard would still be inappropriate because
Maddox-Jones was hired to teach at CSU in 2005, and the issues in this case arose during the
course of her employment in 2007.

                                                  7
In addition, the record does not show that an instructor was guaranteed to be

assigned to the same class each semester. Rather, the subject matter of classes and

the times the classes are offered changed every semester. Thus, being assigned to

teach different classes is not a demotion, but being assigned fewer classes is an

adverse employment action. Therefore, we analyze Maddox-Jones’s prima facie

case under the disparate treatment formulation.

      It is undisputed that Maddox-Jones is a member of a protected class

(African American), that she is qualified to teach the majority of the continuing

education classes at CSU, and that she did suffer an adverse employment action.

Thus, the only issue is whether or not persons outside her protected class were

treated more favorably by Federov when he began assigning classes in the 2007

Winter term.

         The Magistrate Judge found, under the demotion standard, that Maddox-

Jones was replaced by someone outside her protected class because three white

instructors taught her classes. The District Court, in a more thorough review of

the record, found that Maddox-Jones did not show that she was replaced by

someone outside of her protected class. First, to prove this prong of the prima

facie case, Maddox-Jones must identify comparators outside of her protected class.

Initially Maddox-Jones in her EEOC complaint, named several African Americans

                                          8
as comparators. However, in her affidavit filed with her motion for partial

summery judgment, she asserted three Caucasians comparators: Federov, Luca

Yearsovich, and Cassandra Brackin.4 Since these individuals are all instructors in

CSU’s continuing education program and taught some of the same classes as

Maddox-Jones, they are similarly situated to her. Furthermore, one could come to

the conclusion that Brackin was less qualified than Maddox-Jones because

Brackin had no prior experience as a software application instructor.

       Next, Maddox-Jones must show that these instructors were given favorable

treatment. Maddox-Jones first argues that Federov gave the three comparators a

disproportionate number of classes. In Winter 2007, Federov was assigned eight

classes, Yearsovich was assigned four classes and Brackin was assigned five

classes. Maddox-Jones was assigned seven classes, and two other African

Americans were assigned six and five classes, respectively. At first glance this

seems like Maddox-Jones was shown favorable treatment over the other

instructors because only one instructor had more classes assigned to him —

Federov.

       Maddox-Jones counters this by arguing that although she was given more



       4
       Maddox-Jones named one other Caucasian that replaced her, but he taught at a different
campus and Federov did not assign him his classes.

                                              9
classes, the classes were ones that were not popular among students, guaranteeing

that the classes would be cancelled.5 CSU counters that it is unpredictable which

classes will be cancelled. This unpredictability is proven through the number of

classes cancelled for each instructor. In Winter 2007, Maddox-Jones had four of

her seven classes cancelled (57%). Yearsovich had three of his four classes

cancelled (75%), and Brackin had two of her five classes cancelled (40%).

Maddox-Jones had less cancellations than one of her comparators; therefore,

Yearsovich was not treated more favorably. Also, looking at the instructor pool as

a whole: three instructors had 100% cancellation rates (a Hispanic, an African

American, and a Caucasian), and only one instructor had zero cancellations in

Winter 2007 — an African American instructor.

       The Defendant also argues that by limiting the comparators to only three

instructors, Maddox-Jones is “cherry-picking” her comparators. Maddox-Jones

does offer evidence that under Federdov’s administration of the program, the

number of classes assigned to African Americans decreased by about 33%.

However, Maddox-Jones failed to also acknowledge that despite this 33% drop,



       5
          One of these classes was “Brochures and Flyers,” a class that Maddox-Jones argues was
wholly composed of a chapter of the “Word Class.” Thus, the class would be of no value to
either students who had never taken the “Word Class” or to students that had taken the “Word
Class.”

                                              10
Federov still assigned a majority of the classes to African Americans (58%) .

      Admittedly, it is strange that Maddox-Jones went from teaching several

classes for seven quarters to being assigned no classes in the Spring 2007 quarter.

However, during the Spring 2007 quarter, Federov still assigned 58% of the

classes to African Americans. Also, in the Spring 2007 quarter, the two

instructors with the highest number of classes were Yearsovich and an African

American instructor. Thus, it seems that there was genuine miscommunication

between Federov and Maddox-Jones regarding whether she wanted to teach

during the Spring 2007 quarter. Lastly, it is clear that Maddox-Jones was

terminated only for administrative reasons and that Federov did not participate in

her termination.

      Since Maddox-Jones has failed to show that persons outside her protected

class were shown favorable treatment, Maddox-Jones has not proved her prima

facie case. Therefore, the analysis under the McDonnell Douglas burden shifting

framework ends, and the court does not need to evaluate Defendant’s alleged

reasons or Maddox-Jones’s claims of pretext.

AFFIRMED.




                                         11
