[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 10-14886 ELEVENTH CIRCUIT
Non-Argument Calendar JUNE 27, 2011
________________________ JOHN LEY
CLERK
D.C. Docket No. 1:07-cv-00139-WLS
SHIRLEY MORRISON,
llllllllllllllllllllllllllllllllllllllll Plaintiff–Appellant,
versus
CITY OF BAINBRIDGE, GA,
CHRIS HOBBY,
STEVE MCKOWN,
llllllllllllllllllllllllllllllllllllllll Defendants–Appellees.
________________________
Appeal from the United States District Court
for the Middle District of Georgia
________________________
(June 27, 2011)
Before HULL, PRYOR and KRAVITCH, Circuit Judges.
PER CURIAM:
Shirley Morrison appeals from the district court’s order granting summary
judgment in favor of her former employer, the City of Bainbridge, Georgia, (City)
on her Age Discrimination in Employment Act (ADEA) claim. She also appeals
the dismissal of her 42 U.S.C. § 1983 claims against her former supervisors Chris
Hobby and Steve McKown. But because we conclude that district court properly
granted summary judgment and dismissed Morrison’s § 1983 claims, we affirm.
I.
Morrison began working in the City’s purchasing department in 1977 and
shortly thereafter, she became the director of that department, a position she held
for 27 years. In 2003, the City appointed Hobby as the city manager and the next
year he began a reorganization of the city government. Whereas Morrison
previously had reported directly to the city manager, after the reorganization her
department was placed under a newly created department headed by McKown,
who was now also her direct supervisor.
The new arrangement was not free from problems. At one point, McKown
asked Morrison to prepare a bid for two garbage trucks. Morrison told McKown
that she did not think the purchase had been approved in the City’s budget.
McKown told her that he would take care of the issue with the accountants, but to
go ahead and prepare the bids. Instead, Morrison went to Hobby, and told him of
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her concerns. Although Morrison was right, Hobby and McKown met with her
and reprimanded her for going outside the chain of command. Hobby and
McKown also took the occasion to inform her of several other performance
deficiencies, including complaints from both outside vendors and her
subordinates.
Morrison responded to her reprimand by writing a letter, in which she said
she had been unaware of her shortcomings and that she would work to improve.
Four months later, McKown gave Morrison her annual performance review and he
commended her efforts to improve her working relationships and act
professionally. As a result, McKown recommended that Morrison receive a merit
raise, which Hobby approved.
But in February 2005 McKown received a complaint from Morrison’s
secretary about an argument she had had with Morrison. McKown investigated
and spoke with several of Morrison’s subordinates, whom he asked to give him
statements. As a result of his investigation, he concluded that Morrison was still
fostering an unsatisfactory work environment and causing conflict with her
employees. McKown suspended Morrison and recommended that Hobby
terminate her.
Hobby reviewed McKown’s recommendation and asked him for more
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information. After receiving that information from McKown, and based on his
own experience with Morrison, Hobby concluded that the work environment she
had fostered was unacceptable and he fired her. Morrison appealed her
termination to Hobby and after he reaffirmed his decision, she appealed to a
grievance commission, which also affirmed the decision. Neither of her appeals
mentioned that she felt she had been fired based on unlawful discrimination.
Morrison then sued the City alleging that she had been terminated because
of her age in violation of the ADEA. She also sued McKown and Hobby under 42
U.S.C. § 1983 alleging that they had discriminated against her because of both her
sex and age.1 Morrison’s sole evidence of age discrimination was a comment she
overheard McKown make in October 2004 that he was “going to get these old
folks out of here and bring in some new blood.” Morrison also offered evidence
from several of her coworkers who had heard McKown say similar things.
The district court dismissed the § 1983 claims against McKown and Hobby
on qualified-immunity grounds after it concluded that sex-plus-age discrimination
claims, like Morrison’s, are not actionable under § 1983. The district court also
granted summary judgment in favor of the City because it concluded that Morrison
1
Morrison also brought a Title VII claim for sex discrimination against the City, but she
abandoned that claim in the district court and it is not at issue in her appeal.
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had failed to make a prima facie case for age discrimination under the ADEA and
alternatively, even if she had, she failed to provide any evidence that the City’s
proffered nondiscriminatory reason for her termination was pretextual. On appeal
Morrison argues that those decisions were incorrect.
II.
We review a district court’s order granting summary judgment de novo.
Mora v. Jackson Memorial Found., Inc., 597 F.3d 1201, 1203 (11th Cir. 2010).
A plaintiff may prove an ADEA claim through direct or circumstantial
evidence or statistical proof. Clark v. Coats & Clark, Inc., 990 F.2d 1217, 1226
(11th Cir. 1993). Direct evidence is that which establishes discriminatory intent
without inference or presumption. Id. But “[o]nly the most blatant remarks whose
intent could only be to discriminate on the basis of age constitute direct evidence.”
Id. If a plaintiff’s evidence of age discrimination is circumstantial, we apply the
burden shifting framework from McDonnell Douglas v. Green, 411 U.S. 792
(1973). Clark, 990 F.2d at 1226.
Morrison argues that the district court should not have applied the
McDonnell Douglas framework to her case because McKown’s October 2004
statement (and similar statements he made) was direct evidence of discrimination.
But we conclude that it was circumstantial.
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Evidence that only suggests discriminatory intent is by definition
circumstantial. Burrell v. Bd. Of Trustees of Ga. Military Coll., 125 F.3d 1390,
1393–94 (11th Cir. 1997). Moreover, remarks by non-decisionmakers, like
McKown, or remarks that are not related to the decision-making process are not
direct evidence. Standard v. A.B.E.L. Servs., 161 F.3d 1319, 1330 (11th Cir.
1998). Although one could infer from McKown’s statement that he harbored an
animus toward older workers, it does not unambiguously suggest that Morrision
was terminated because of her age.
When the statement was made is also relevant. Scott v. Suncoast Beverage
Sales, Ltd., 295 F.3d 1223, 1227–28 (11th Cir. 2002). Although it was made only
four months before Morrison was fired, it was only a month later that McKown
commended Morrison for her efforts to create a better work environment and
recommended that she receive a raise. Accordingly, because Morrison’s evidence
of discrimination was circumstantial, the district court properly analyzed her
ADEA claim under the McDonnell Douglas test. We now turn to Morrison’s
argument that the district court erred in granting summary judgment under
McDonnell Douglas because McKown’s October 2004 statement was evidence
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that the proffered reason for her dismissal was pretextual.2
Under the McDonnell Douglas test, the plaintiff bears the initial burden of
establishing a prima facie case. Pennington v. City of Huntsville, 261 F.3d 1262,
1266 (11th Cir. 2001). Once a plaintiff has established a prima facie case, the
employer then has an opportunity to articulate a legitimate, nondiscriminatory
reason for the challenged employment action. Id. If the employer proffers such an
explanation, the burden shifts back to the plaintiff to prove by a preponderance of
the evidence that the defendant’s explanation is merely a pretext. Id. A claimant
cannot establish pretext by simply demonstrating facts that suggest discrimination,
but must specifically respond to the employer’s explanation and rebut it.
Crawford v. City of Fairburn, Ga., 482 F.3d 1305, 1309 (11th Cir. 2007). A
reason is not pretextual unless it is shown both that the reason was false, and that
discrimination or retaliation was the real reason. Brooks v. Cnty. Comm’n of
Jefferson Cnty., Ala., 446 F.3d 1160, 1163 (11th Cir. 2006).
Here the district court correctly found that Morrison had failed to present
2
Although the district court found that Morrison failed to establish a prima facie case of
discrimination it also found that she had failed to rebut the City’s proffered nondiscriminatory
reason for her termination. We do not address whether Morrison made out a prima facie case
and instead focus on the district court’s second finding for two reasons. First, on appeal the City
concedes that she made out a prima facie case, and second, when an employer has offered a
legitimate, nondiscriminatory reason for an employee’s termination, whether a plaintiff made out
a prima facie case is almost always irrelevant in considering a motion for summary judgment.
Brady v. Office of Sergeant at Arms, 520 F.3d 490, 492 (D.C. Cir. 2008).
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evidence rebutting the City’s proffered reason for her termination. Morrison was
fired for creating an unsatisfactory and conflict-riven work environment, and she
failed to present any evidence that the statements given by her subordinates were
untrue. Nor did she dispute that she and her secretary argued. Although Morrison
notes that she was correct about the bid for garbage trucks not having been
approved in the City’s budget, she was nonetheless reprimanded by Hobby for
subverting McKown’s position as her supervisor. Because Morrison did not
present evidence to rebut the City’s proffered reason, we conclude the district
court was correct to grant summary judgment on her ADEA claim.
III.
We now turn to Morrison’s argument that the district court erred in
dismissing her § 1983 claims for sex-plus-age discrimination against McKown and
Hobby. The district court did so for two reasons. First, it found the defendants
were entitled to qualified immunity. Second, it found that sex-plus-age
discrimination claims are not actionable under § 1983.
We review a district court’s order dismissing a claim de novo. Collier v.
Dickinson, 477 F.3d 1306, 1308 (11th Cir. 2007). A government official is
entitled to qualified immunity if, under the facts as alleged, his official conduct did
not violate a clearly established statutory or constitutional right of which a
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reasonable person would have known. Amnesty Int’l, USA v. Battle, 559 F.3d
1170, 1181 (11th Cir. 2009).
Although the parties contest whether Morrison can make a § 1983 claim for
sex-plus-age discrimination, we will assume she can. But even having made that
assumption, we conclude that the district court properly dismissed her complaint
because it does not sufficiently allege a cause of action.3
In her complaint, Morrison made conclusory allegations McKown and
Hobby discriminated against her based on her sex and age, but failed to provide
any factual basis to support that assertion. “To survive a motion to dismiss, a
complaint must contain sufficient factual matter, accepted as true, to ‘state a claim
to relief that is plausible on its face.’” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949
(2009) (quoting Bell Atl. Co. v. Twombly, 550 U.S. 544, 570 (2007)). “Threadbare
recitals of the elements of a cause of action, supported by mere conclusory
statements, do not suffice.” Id. Accordingly, we conclude that the district court
properly dismissed Morrison’s § 1983 claims against McKown and Hobby and do
not reach the question whether they were entitled to qualified immunity.
3
Although the district court granted McKown and Hobby’s motion to dismiss because it
concluded that a sex-plus-age discrimination claim was not viable under § 1983 and because it
found the defendants were entitled to qualified immunity, the defendants also challenged the
sufficiency of Morrison’s complaint, and we may affirm on any ground supported by the record.
Ironworkers Local Union 68 v. AstraZeneca Pharms., LP, 634 F.3d 1352, 1360 (11th Cir. 2011).
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AFFIRMED.
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