                                                                  [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS
                    FOR THE ELEVENTH CIRCUIT
                                                                          FILED
                      -------------------------------------------U.S. COURT OF APPEALS
                                   No. 04-15606                    ELEVENTH CIRCUIT
                                                                   DECEMBER 22, 2005
                             Non-Argument Calendar
                     -------------------------------------------- THOMAS K. KAHN
                                                                         CLERK

                    D.C. Docket No. 03-00192-CV-B-S

YVETTE GRADY,

                                                      Plaintiff-Appellant,

                                       versus

BELLSOUTH,

                                                      Defendant-Appellee.


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              Appeal from the United States District Court
                  for the Northern District of Alabama
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                               (December 22, 2005)

Before EDMONDSON, Chief Judge, BIRCH and BARKETT, Circuit Judges.


PER CURIAM:
        Plaintiff-Appellant Yvette Grady, who is African-American, appeals the

district court’s grant of summary judgment in favor of her former employer,

BellSouth, in this action alleging that BellSouth--in violation of 42 U.S.C. § 1981

and Title VII, 42 U.S.C. § 2000e-21-- racially discriminated against Plaintiff when

it twice failed to promote her. No reversible error has been shown; we affirm.

        Plaintiff argues first that, under Fed.R.Evid. 701, the district court

improperly struck the deposition testimony of her immediate supervisor, Joan

Bentley, about (1) Plaintiff’s qualifications for the promotions and (2) Bentley’s

opinion that BellSouth had discriminated against Plaintiff. Plaintiff avers that

Bentley’s testimony on these matters creates a genuine issue of material fact about

whether Plaintiff was a victim of discrimination.

        We review a district court’s rulings striking evidence for an abuse of

discretion. See Hall v. United Ins. Co. of Am., 367 F.3d 1255, 1259 (11th Cir.

2004). Rule 701 governs lay witness opinion testimony and requires that such

testimony, among other things, be (1) “rationally based on the perception of the




    1
       Plaintiff also claimed that BellSouth retaliated against her after she complained of race
discrimination. The district court noted that Plaintiff only was pursuing her failure-to-promote
claim; and Plaintiff does not mention the retaliation claim on appeal. The retaliation claim is
abandoned. See Greenbriar, Ltd. v. City of Alabaster, 881 F.2d 1570, 1573 n.6 (11th Cir. 1989).

                                               2
witness” and (2) “helpful to a clear understanding of the witness’ testimony or the

determination of a fact in issue.” Fed.R.Evid. 701.




      Bentley testified that she believed (1) Plaintiff was more qualified for

promotion to a first-level manager position than Ann Tabor and Sheila Hawkins,

the white employees who were promoted, and (2) Plaintiff was being

discriminated against on the basis of race when BellSouth promoted Tabor over

Plaintiff. We conclude that the district court did not abuse its discretion in

striking Bentley’s testimony on these matters.

      Bentley admitted that she did not know who was the decision maker for the

Tabor promotion; she said nothing about the Hawkins promotion process. And we

see no evidence that Bentley knew of the qualifications for promotion to the first-

level manager position. The record does not show that Bentley was involved in

the selection process for promoting candidates to the first-level manager position.

Plaintiff conceded that Bentley’s supervisor, Richard McIntire, and McIntire’s

boss, Jon Rey Sullivan, made the promotion decisions. Also, Bentley did not




                                          3
testify that she knew of the criteria BellSouth employed in the selection process.2

Thus, we reject as speculative Plaintiff’s suggestion that Bentley must have known

of the specific requirements for promotion based on Bentley’s 25 years of

employment with BellSouth, her 5 to 6 years’ experience as a first-level manager,

and her position as direct supervisor over Tabor and Plaintiff. And, we observe

that Bentley testified that she did not hear McIntire say things that would lead her

to believe he was prejudiced against African-Americans. In sum, our reading of

the record shows Bentley’s opinions that Plaintiff was more qualified than Tabor

and Hawkins and that BellSouth discriminated against Plaintiff are, at most,

speculative and conclusory and are not rationally based on Bentley’s perceptions.3

           Plaintiff also argues that she proved a prima facie case of race

discrimination. She further contends that she was more qualified than Tabor and

Hawkins. Thus, she maintains that she rebutted as pretextual BellSouth’s

proffered reason for denying her the promotions: that the two promoted white


   2
     Bentley stated, without detail, that Plaintiff had more experience than Tabor in working with
invoices and Access Service Requests (ASRs). But for the position to which Tabor was promoted,
BellSouth presented evidence that the promotion was based not on experience but on speed and
proficiency in processing invoices. And Bentley failed to explain why she thought Plaintiff was
more qualified than Hawkins.
       3
       To the extent that Plaintiff argues that the district court should have admitted Bentley’s
testimony that BellSouth in the past had discriminated against Bentley on the basis of gender, this
testimony is, at best, of limited relevance to Plaintiff’s claim of race discrimination. The district
court abused no discretion in excluding this testimony.

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employees were better qualified than her. And she claims that most of BellSouth’s

reasons for denying her the promotions were subjective. Plaintiff also suggests

that she can show pretext because BellSouth changed one of the reasons for not

promoting her: at first, McIntire stated that Plaintiff’s absences played no role in

the promotion decision, but later BellSouth cited Plaintiff’s attendance record as

one of the main reasons for the decision.

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

the facts--as supported by the evidence in the record--and reasonable inferences

from those facts in the light most favorable to the nonmoving party. Young v.

City of Palm Bay, Fla., 358 F.3d 859, 860 (11th Cir. 2004). Summary judgment is

proper where no genuine issue of material fact exists. Id.

      To evaluate Plaintiff’s claim, which is based on circumstantial evidence, we

use the familiar burden-shifting framework established by the Supreme Court in

McDonnell Douglas Corp. v. Green, 93 S.Ct. 1817 (1973). See Cooper v.

Southern Co., 390 F.3d 695, 724-25 & n.16 (11th Cir. 2004), (applying

McDonnell Douglas framework to claims of intentional discrimination arising

under Title VII and § 1981), cert denied, 126 S.Ct. 478 (2005). In this framework,

Plaintiff must establish a prima facie case of discrimination, which creates a

presumption of discrimination. BellSouth then must offer a legitimate,

                                            5
nondiscriminatory reason for the employment action to rebut the presumption. If

BellSouth successfully rebuts the presumption, the burden shifts back to Plaintiff

to discredit the proffered nondiscriminatory reason by showing that it is

pretextual. McDonnell Douglas, 93 S.Ct. at 1824-25.

      We assume without deciding that Plaintiff established a prima facie case of

discriminatory failure to promote. BellSouth has offered a legitimate, non-

discriminatory reason for not promoting Plaintiff: the decision makers believed

Tabor and Hawkins were better qualified than Plaintiff for the first-level manager

positions. See Cofield v. Goldkist, Inc., 267 F.3d 1264, 1268-69 (11th Cir. 2001)

(affirming summary judgment in favor of employer who promoted candidate it

believed was more qualified). We agree with the district court that Plaintiff has

not shown that this reason is pretext for discrimination.

      The record shows that McIntire recommended to Sullivan that Tabor and

Hawkins be promoted. According to McIntire’s observations, Plaintiff was not as

qualified as Tabor for one of the positions, which required proficiency with

invoices, because Tabor processed invoices more quickly than Plaintiff. And

Mcintire believed that Plaintiff was not as qualified as Hawkins for the other

position because Plaintiff did not have as much experience working with Access

Service Requests (ASRs). In addition, McIntire stated that Plaintiff was not as

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qualified for either position because Tabor and Hawkins (1) possessed better

communication skills than Plaintiff, (2) had demonstrated a superior ability to

build productive relationships with co-workers and customers, whereas McIntire

believed that Plaintiff, among other things, avoided interactions with--and

sometimes failed to cooperate with--others, (3) had demonstrated a more

aggressive attitude toward work than Plaintiff by asking for more work and

responsibility. That many of BellSouth’s reasons were subjective does not show

that the reasons were a pretext for discrimination. See Chapman v. AI Transport,

229 F.3d 1012, 1030 (11th Cir. 2000) (en banc) (stating that subjective reason,

such as a personal quality, can be “legally sufficient, legitimate, nondiscriminatory

reason” if defendant sets out “clear and reasonably specific factual basis upon

which it based its subjective opinion”). Plaintiff has not shown that, under

BellSouth’s promotion criteria, she was so better qualified for the first-level

manager positions that the disparities between her qualifications and those of

Tabor and Hawkins “jump off the page and slap you in the face.” Lee v. GTE Fla.,

Inc., 226 F.3d 1249, 1254 (11th Cir. 2000) (citation omitted); see Chapman, 229

F.3d at 1030 (stating that, to show pretext, plaintiff must rebut “head on”

employer’s proffered nondiscriminatory reasons).




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      And the record does not support a conclusion that BellSouth changed its

reason for not promoting Plaintiff. McIntire and Sullivan were the decision

makers for the promotions. McIntire stated that he did not consider Plaintiff’s

attendance in making his recommendation. But Sullivan made clear that, if

Plaintiff wanted a promotion, she would have to improve her attendance record.

      In sum, the district court abused no discretion in striking Bentley’s

deposition testimony. And the district court did not err in granting summary

judgment to BellSouth on Plaintiff’s claims of racially discriminatory failure to

promote.

      AFFIRMED.




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