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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 17-11089
Non-Argument Calendar
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D.C. Docket No. 2:12-cv-04074-SGC
RODNEY G. BROWN,
Plaintiff-Appellant,
versus
SHELBY COUNTY
BOARD OF EDUCATION,
Defendant-Appellee.
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Appeal from the United States District Court
for the Northern District of Alabama
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(December 19, 2017)
Before WILLIAM PRYOR, ANDERSON, and EDMONDSON, Circuit Judges.
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PER CURIAM:
Plaintiff Rodney Brown appeals the district court’s grant of summary
judgment in favor of his former employer, Shelby County Board of Education
(“Board”), on his claims for race discrimination and retaliation, in violation of 42
U.S.C. §§ 2000e-2, 3 (“Title VII”), and 42 U.S.C. § 1981.1 No reversible error has
been shown; we affirm.
Beginning in 2001, Plaintiff (an African-American male) was employed by
the Board as a high school special-education teacher. Plaintiff completed his
master’s degree in special education in 2005 and became state-certified as an
educational administrator in 2006.
Between 2009 and 2013, Plaintiff applied for 11 vacant administrator or
assistant principal positions at schools within the Board’s control. Plaintiff
contends that, in each case, the Board hired a less-qualified white candidate instead
of Plaintiff. Plaintiff asserts that the Board’s repeated failure to promote him was
as a result of race discrimination and -- with respect to three of the rejections --
was also done in retaliation for Plaintiff’s having earlier filed a charge of
discrimination with the Equal Employment Opportunity Commission.
1
In his complaint, Plaintiff also purported to assert claims based on equal protection and for
discrimination on the basis of his religion. Because Plaintiff raises no argument about these
claims on appeal, they are not before us.
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The district court granted the Board’s motion for summary judgment. The
district court first determined that the Board had identified legitimate,
nondiscriminatory reasons for hiring the selected candidates instead of Plaintiff
and that Plaintiff had failed to show that the Board’s proffered reasons were pretext
for race discrimination. About Plaintiff’s claim for retaliation, the district court
concluded that Plaintiff failed to establish a prima facie case because he had failed
to demonstrate a causal connection between his protected activity and the Board’s
hiring decisions. Further, the district court determined that Plaintiff had failed to
demonstrate that the Board’s legitimate, non-retaliatory reasons were pretextual.
We review de novo the district court’s grant of summary judgment. Vessels
v. Atlanta Indep. Sch. Sys., 408 F.3d 763, 767 (11th Cir. 2005). And we view the
evidence and draw all reasonable inferences in the light most favorable to the non-
moving party. Id.
I.
Title VII makes it unlawful for an employer to discriminate on the basis of
an employee’s race. 42 U.S.C. § 2000e-2(a)(1). The elements of a section 1981
claim in the employment context are the same as the elements of a Title VII claim.
Rice-Lamar v. City of Ft. Lauderdale, 232 F.3d 836, 843 n.11 (11th Cir. 2000).
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Plaintiff bears the ultimate burden of proving -- by a preponderance of the
evidence -- that the Board discriminated unlawfully against him. See Crawford v.
Carroll, 529 F.3d 961, 975 (11th Cir. 2008). Because Plaintiff presented only
circumstantial evidence of discrimination, we apply the burden-shifting framework
established in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).2 Id. at
976.
If an employee establishes a prima facie case of discrimination, the
employer must then proffer a legitimate, nondiscriminatory reason for the adverse
employment act. Id. If the employer meets its burden of production, the inference
of discrimination created by the plaintiff’s prima facie case is rebutted and drops
out of the case. Vessels, 408 F.3d at 768. The burden then shifts back to the
employee to produce sufficient evidence from which a reasonable factfinder could
determine that the employer’s articulated reasons are a pretext for unlawful
discrimination. Brooks v. Cnty. Comm’n of Jefferson Cnty., Ala., 446 F.3d 1160,
1163 (11th Cir. 2006). To establish pretext, the employee must “meet the
proffered reason head on and rebut it.” Id. (alterations omitted). “A reason is not
pretext for discrimination ‘unless it is shown both that the reason was false, and
that discrimination was the real reason.’” Id. (emphasis in original).
2
On appeal, Plaintiff asserts for the first time that he can establish a Title VII violation based on
a “mixed-motives” theory. Because Plaintiff failed to raise this argument in the district court, we
will not consider it on appeal.
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That Plaintiff established a prima facie case for race discrimination is
undisputed. Accordingly, the burden shifted to the Board to articulate a legitimate,
nondiscriminatory reason for not hiring Plaintiff. Briefly stated, the Board
contended that -- for each position for which Plaintiff applied -- the Board selected
a candidate who was more qualified, had more leadership experience, and who
performed better in their interview than did Plaintiff. The Board also presented
specific evidence documenting each of the selected candidate’s leadership
experience and qualifications and, where applicable, the interviewers’ impressions
of Plaintiff’s interview compared to the interview of the selected candidate. On
this record, the Board’s stated reasons for not hiring Plaintiff were sufficient to
satisfy the Board’s burden of production. See Kidd v. Mando Am. Corp., 731 F.3d
1196, 1205 (11th Cir. 2013) (an employer satisfies its burden of proffering a
legitimate, nondiscriminatory reason for failing to promote an employee when it
states -- in a manner specific enough for the plaintiff to rebut -- that the candidate
who was hired was more qualified); Chapman v. AI Transp., 229 F.3d 1012, 1033
(11th Cir. 2000) (en banc) (when supported by a “clear and reasonably specific”
basis, an employer’s stated reason that a candidate interviewed poorly constitutes a
legitimate, nondiscriminatory reason for not hiring an applicant).
The burden thus shifted back to Plaintiff to produce sufficient evidence to
allow a reasonable factfinder to determine that the Board’s stated reasons were
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false and that race discrimination was the real reason for the Board’s hiring
decisions. Plaintiff first contends that he was more qualified than each of the
selected candidates. But “a plaintiff cannot prove pretext by simply arguing or
even by showing that he was better qualified than the person who received the
position he coveted.” Kidd, 731 F.3d at 1206 (alterations omitted). Instead, a
“plaintiff must show that the disparities between the successful applicant’s and
[his] own qualifications were of such weight and significance that no reasonable
person, in the exercise of impartial judgment, could have chosen the candidate
selected over the plaintiff.” Id. We stress that “[w]e are not in the business of
adjudging whether employment decisions are prudent or fair. Instead, our sole
concern is whether unlawful discriminatory animus motivates a challenged
employment decision.” Damon v. Fleming Supermarkets of Fla., Inc., 196 F.3d
1354, 1361 (11th Cir. 1999).
Here, Plaintiff has failed to show that he was more qualified than the
selected candidates, let alone that his qualifications so far exceeded the selected
candidates’ qualifications that no reasonable person could have hired the selected
candidates over Plaintiff. Apart from other job candidates interviewing better, the
evidence -- viewed in the light most favorable to Plaintiff -- shows objectively that
each of the selected candidates had more years of experience than did Plaintiff in
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teaching or in working with the pertinent age group, or in working in leadership
roles, or in more than one of these job-related categories.
Plaintiff also contends that he has presented other circumstantial evidence
from which a reasonable factfinder could conclude that the Board’s stated reasons
were pretextual. Plaintiff first says that, in 2007 and 2008, the Board employed no
black males in administrator positions and that, in 2009, an accreditation
organization recommended the Board implement a plan to recruit more minority
administrators. Nothing evidences, however, that the Board’s interview and hiring
process discriminated intentionally against minorities or against Plaintiff on
account of race.
Plaintiff also contends that two of the people involved in the hiring process
had demonstrated “racial animus” in the past. In particular, one person said in his
deposition -- when asked if he had “ever used a racial slur” -- that he “would be
lying if I said that there has not been a time in my life where there has been an
unfortunate joke told or something of that nature.” The second person posted on
Facebook a photograph of himself wearing a “hoodie” immediately following the
July 2013 verdict in the Trayvon Martin case (in which a white man was acquitted
of murdering a black teenager who had been wearing a hooded sweatshirt). We are
unpersuaded that this conduct -- not focused on Plaintiff or tied to the Board’s
hiring decisions -- constitutes evidence sufficient to raise a triable issue that the
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Board’s stated reasons were false or that the real reason for the Board’s hiring
decisions was race discrimination.
Plaintiff has failed to show that the Board’s articulated reasons were pretext
for race discrimination; the district court granted properly the Board’s motion for
summary judgment.
II.
About Plaintiff’s claim for retaliation, employers are barred under both Title
VII and section 1981 from retaliating against an employee or an applicant for
employment who engages in statutorily-protected activity. See 42 U.S.C. § 2000e-
3(a); Chapter 7 Tr. v. Gate Gourmet, Inc., 683 F.3d 1249, 1257-58 (11th Cir.
2012). To establish a prima facie case for retaliation, a plaintiff must show that he
engaged in a statutorily-protected activity and suffered an adverse employment
action that was causally related to the protected activity. Gate Gourmet, Inc., 683
F.3d at 1258. Once a plaintiff establishes a prima facie case of retaliation, and the
employer articulates a legitimate, non-retaliatory reason for the challenged
employment action, the burden shifts to the plaintiff to offer evidence that the
employer’s stated reason is pretextual. Brown v. Ala. Dep’t of Transp., 597 F.3d
1160, 1181 (11th Cir. 2010).
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The district court committed no error in granting the Board’s motion for
summary judgment on Plaintiff’s retaliation claim. Even if we assume -- without
deciding -- that Plaintiff has established a prima facie case for retaliation, the
Board has offered legitimate, non-retaliatory reasons for not hiring Plaintiff: that
Plaintiff was less qualified and did not perform as well in his interview as did the
selected candidates. As we have already discussed, Plaintiff has failed to show that
the Board’s stated reasons for not hiring Plaintiff were pretextual.
AFFIRMED.
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