[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
October 6, 2005
No. 05-10020
THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 02-02237-CV-HS-S
THOMAS STUART,
Plaintiff-Appellant,
versus
JEFFERSON COUNTY DEPARTMENT OF HUMAN RESOURCES,
CARO SHANAHAN,
in her individual capacity,
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Northern District of Alabama
_________________________
(October 6, 2005)
Before CARNES, MARCUS and KRAVITCH, Circuit Judges.
PER CURIAM:
Thomas Stuart appeals the district court’s grant of summary judgment on his
gender discrimination claims against the Jefferson County Department of Human
Resources (“JCDHR”) and its director, Caro Shanahan (collectively “the
defendants”), brought pursuant to Title VII of the Civil Rights Act of 1964, 42
U.S.C. § 2000(e) et seq. and 42 U.S.C. § 1983.
I. Background
Stuart has worked for JCDHR 1 since 1980 and currently holds the position
of financial support supervisor. On September 11, 2002, Stuart filed his complaint.
In Count I, he alleged that JCDHR discriminated against him on the basis of his
gender by failing to promote him, in violation of Title VII. Count II was a § 1983
claim against Shanahan in her individual capacity, in which he alleged that
Shanahan violated his constitutional right to equal protection by failing to promote
him because of his gender. His complaint listed three occasions when he was
denied a promotion: (1) on June 28, 2001, a position as JCDHR program
supervisor became available, and Claire Brock was chosen; (2) on October 9, 2001,
a promotion to JCDHR program specialist became available, and Jennifer Griffen
was promoted; and (3) on June 12, 2002, a position as child support program
supervisor became available and Yolanda Boleware was selected. Attached to the
1
JCDHR is an Alabama State Agency, operating in Jefferson County, Alabama, pursuant
to Ala. Code § 38-2-8.
2
complaint was a copy of his EEOC charge, filed on April 1, 2002.
The defendants moved for summary judgment. The district court granted
summary judgment in part, dismissing the Title VII claims against JCDHR, but
allowing the § 1983 claims against Shanahan to proceed. In considering the Title
VII claims, the district court found that the June 2001 claim was untimely, because
it occurred more than 180 days before Stuart filed his EEOC charge on April 1,
2002. The district court also found that the June 2002 was procedurally barred,
because it fell outside the scope of the incidents alleged in the EEOC charge.
Thus, the only Title VII claim addressed by the district court was the one involving
the October 2001 promotion. For this claim, the district court concluded that
Stuart had made out a prima facie case, but that the defendants had set forth a
legitimate, non-discriminatory reason for not selecting Stuart, and that Stuart was
unable to show this reason was pretextual.
The defendants moved for reconsideration, asserting that Stuart could not
show intent to discriminate under § 1983.2 The court granted the motion to
reconsider and granted summary judgment on the § 1983 claims, finding that,
because § 1983 and Title VII are analyzed under the same standards, and Stuart
2
Attached to the motion were copies of evaluations for Griffen and Boleware but
because this evidence was presented for the first time in the motion for reconsideration, the
district court refused to consider it.
3
had failed to show pretext on his Title VII claims, summary judgment was also
appropriate on the § 1983 claims. Stuart now appeals.
II. Standard of Review
We review a district court’s grant of summary judgment de novo, viewing
the evidence in the light most favorable to the party opposing the motion. Wilson
v. B/E Aerospace, Inc., 376 F.3d 1079, 1085 (11th Cir. 2004). Summary judgment
is appropriate “if the pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any, show that there is no
genuine issue as to any material fact and that the moving party is entitled to a
judgment as a matter of law.” Fed. R. Civ. P. 56(c); Eberhardt v. Waters, 901 F.2d
1578, 1580 (11th Cir. 1990).
III. Discussion
A. Timeliness of June 2001 Failure to Promote Claim
Stuart argues that the district court erred in finding that his June 2001 claim
was untimely. As a prerequisite to filing suit under Title VII, a plaintiff must file a
timely charge of discrimination with the EEOC. Mitchell v. Jefferson County Bd.
Of Educ., 936 F.2d 539, 543 (11th Cir. 1991). “In Alabama, a non-deferral state, a
plaintiff must file a Title VII discrimination charge with the EEOC within 180 days
of the alleged violation.” Tipp v. AmSouth Bank, 76 F.Supp.2d 1315, 1327 (S.D.
4
Ala. 1998), aff’d, 229 F.3d 1166 (11th Cir. 2000). Viewing the facts in the light
most favorable to Stuart, July 31, 2001 was the latest date on which he could have
been informed that he was denied this promotion. Therefore, as his charge was not
filed until April 1, 2002, this claim is outside of the 180 day time period.
Stuart acknowledges this, but urges us to view his claim as a “continuing
violation.” “In determining whether a discriminatory employment practice
constitutes a continuing violation, this Circuit distinguishes between the present
consequence of a one time violation, which does not extend the limitations period,
and the continuation of that violation into the present, which does.” Calloway v.
Partners Nat. Health Plans, 986 F.2d 446, 448 (11th Cir. 1993). We reject Stuart’s
contention that his claims are continuing violations. An employer’s failure to
promote is a discrete act or single occurrence and therefore the continuing violation
doctrine does not apply. Nat’l R.R. Passenger Corp v. Morgan., 536 U.S. 101, 114
(2002). For Stuart’s claims to be timely, he was required to file his EEOC
complaint within 180 days of each discrete employment decision. Because the
June 2001 claim arose more than 180 days before Stuart filed his EEOC charge,
the district court properly refused to consider it.
B. June 2002 Claim and Scope of Charge
Next, we consider whether the district court erred in concluding that Stuart’s
5
June 12, 2002 failure to promote claim was procedurally barred because it was
outside the scope of the EEOC charge. A “plaintiff’s judicial complaint is limited
by the scope of the EEOC investigation which can reasonably be expected to grow
out of the charge of discrimination.” Gregory v. Georgia Dep’t of Human
Resources, 355 F.3d 1277, 1280 (11th Cir. 2004). Judicial claims that “amplify,
clarify, or more clearly focus” the allegations in the EEOC charge are permitted,
but the plaintiff cannot allege new acts of discrimination. Gregory, 355 F.3d at
1279-80.
Stuart’s EEOC charge alleged two instances of failure to promote (June
2001 and October 2001), but his complaint added a third instance, the June 2002
allegation, which occurred after the filing of the charge. The June 2002 allegation
did not amplify or clarify the previous allegations, nor did it grow out of the
previous claims. A purpose of Title VII’s exhaustion requirement is to notify the
defendant of the allegations and to give the EEOC “the first opportunity to
investigate the alleged discriminatory practices to permit it to perform its role in
obtaining voluntary compliance and promoting conciliation efforts.” Green v.
Elixir Ind., Inc., 407 F.3d 1163, 1167 (11th Cir. 2005). Stuart never amended or
updated his April 1, 2002 EEOC charge, so there was nothing in the charge that
would have put the employer on notice of his June 2002 claim. Nor did the EEOC
6
ever have an opportunity to investigate that claim. Accordingly, the district court
properly refused to consider the June 2002 claim as being outside the scope of the
EEOC charge.
C. October 9, 2001 Allegation
Stuart also contends that the district court erroneously concluded that he
failed to establish that the defendant’s reasons for not selecting him for the October
2001 position were a pretext for discrimination. To evaluate Title VII gender
discrimination claims based upon circumstantial evidence3, courts use the familiar
burden-shifting analysis established in McDonnell Douglas Corp. v. Green, 411
U.S. 792 (1973) and Texas Department of Community Affairs v. Burdine, 450 U.S.
248 (1981). See Combs v. Plantation Patterns, 106 F.3d 1519, 1527-28 (11th Cir.
1997). Under this framework, the plaintiff must first establish a prima facie case
by showing that (1) he was qualified and applied for the position; (2) he was
rejected despite his qualifications; and (3) other equally or less qualified employees
who are not members of his gender were promoted. Wilson, 376 F.3d at 1089.
Once the plaintiff establishes a prima facie case, the burden shifts to the employer
to show a legitimate nondiscriminatory reason for the employer’s actions.
McDonnell Douglas Corp., 411 U.S. at 802. If the employer does so, the plaintiff
3
This case does involve any direct evidence of discrimination.
7
then bears the burden of demonstrating that the employer’s proffered reason was a
pretext for discrimination. Id. at 802-04, 807. At that stage, the court should
evaluate whether the plaintiff demonstrated “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.” Combs, 106 F.3d at 1538. If the plaintiff fails to offer
sufficient evidence of pretext, the employer is entitled to summary judgment in its
favor. Chapman v. AI Transport, 229 F.3d 1012, 1025 n.11 (11th Cir. 2000) (en
banc). “If the proffered reason is one that might motivate a reasonable employer, a
plaintiff cannot recast the reason but must meet it head on and rebut it.” Wilson,
376 F.3d at 1088.
We accept the district court’s conclusion that Stuart made out a prima facie
case with respect to his October 2001 claim. The evidence showed that Stuart was
listed on the register of eligibility and met the generic qualifications for the
position sought. See Wilson, 376 F.3d at 1089. The defendants, however,
proffered legitimate, non-discriminatory reasons for not selecting him, namely that
the female chosen for the position–Jennifer Griffen–had more experience for the
position at issue. The defendants stated that Griffen had ten years of experience in
the child support area, and there is evidence in the record supporting the
8
defendant’s position that child support experience was important for the job in
question.4 Stuart concedes that he did not have any experience in child support.
Once the defendants put forth this non-discriminatory reason, the burden shifted to
Stuart to show that this reason lacked credibility.
Stuart failed to show pretext. He cannot prove pretext merely by baldly
asserting that he was better qualified than the person who received the position at
issue. Instead, he must proffer evidence that the disparity in qualification was “so
apparent as virtually to jump off the page and slap you in the face.” Wilson, 376
F.3d at 1090 (citing Cofield v. Goldkist, Inc., 267 F.3d 1264, 1268 (11th Cir.
2001). “For the discrepancies to ‘jump off the page and slap you in the face,’ they
must be of such weight and significance that no reasonable person could have
chosen [Griffen] over [Stuart].” Id.
Here, Stuart failed to offer any evidence that he was more qualified than
Griffen, that the discrepancies in their qualifications were so apparent as to jump
off the page, or that the defendant’s reason why it promoted Griffen over Stuart
was otherwise pretextual. See Denney v. City of Albany, 247 F.3d 1172, 1187
(11th Cir. 2001). Accordingly, as Stuart failed to demonstrate pretext, summary
judgment was proper.
4
Specifically, Stuart stated in his EEOC charge that he “was informed by letter...that they
were particularly interested in applicants with child support experience.”
9
D. § 1983 Claims
Finally, Stuart argues that the court erred by granting the defendants’ motion
for reconsideration and granting summary judgment on all of the equal protection
claims against Shanahan. To state of a cause of action under § 1983, Stuart must
show that his constitutional rights were violated by a person acting under color of
state law. Griffin v. City of Opa-Locka, 261 F.3d 1295, 1303 (11th Cir. 2001).
“When section 1983 is used as a parallel remedy for violation of...Title VII, the
elements of the two causes of action are the same.” 5 Snider v. Jefferson State
Community College, 344 F.3d 1325, 1328 n.4 (11th Cir. 2003) (emphasis in
original).
Here, the district court properly granted summary judgment on Stuart’s
§ 1983 claim relating to the October 2001 promotion.6 As discussed supra, Stuart
failed to establish that the reasons given for the employment decision were a
pretext for discrimination. Nonetheless, the district court erred in dismissing
5
Section 1983 creates no substantive rights; it merely creates a remedy for deprivations
of federal constitutional and statutory rights. Almand v. Dekalb County, 103 F.3d 1510, 1512
(11th Cir. 1997). Here, Stuart’s substantive rights stem from the Equal Protection Clause of the
Fourteenth Amendment. See Williams v. Consolidated City of Jacksonville, 341 F.3d 1261,
1268 (11th Cir. 2003).
6
The district court also properly rejected Shanahan’s defense of qualified immunity
because gender discrimination was a clearly established violation of the law at the time of the
alleged violations. See Williams v. Consolidated City of Jacksonville, 341 F.3d 1261, 1270-71
(11th Cir. 2003).
10
Stuart’s other two § 1983 claims (the June 2001 and June 2002 claims) because it
never made factual findings with regard to those claims. Rather, as discussed
supra, the June 2001 and June 2002 claims were never considered on the merits
because they were procedurally barred under Title VII.
Although the elements are the same under Title VII and § 1983, Stuart’s
claims under § 1983 do not involve the same procedural requirements. In
particular, the applicable statute of limitations under § 1983 follows the statute of
limitations applicable in the state in which the conduct occurred, which, in
Alabama, is two years. See Ala. Code § 6-2-38 (2004); Lufkin v. McCallum, 956
F.2d 1104 (11th Cir. 1992). Stuart filed his complaint on September 11, 2002,
making the June 2001 and June 2002 claims timely.
Accordingly, we VACATE and REMAND for the district court to address
the § 1983 claims against Shanahan arising from the June 2001 and June 2002
promotions and AFFIRM the district court’s entry of summary judgment on the
Title VII claims and the § 1983 claim arising out of the October 2001 promotion.
AFFIRMED in part, VACATED and REMANDED in part.
11
Stuart v. Jefferson County Department of Human Resources
Court: Court of Appeals for the Eleventh Circuit
Date filed: 2005-10-06
Citations: 152 F. App'x 798
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