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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 20-11697
Non-Argument Calendar
________________________
D.C. Docket No. 3:17-cv-00183-TCB
ERNEST HAYWARD WARD,
Plaintiff-Appellant,
versus
TROUP COUNTY SCHOOL DISTRICT,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
________________________
(April 1, 2021)
Before LAGOA, BRASHER, and EDMONDSON, Circuit Judges.
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PER CURIAM:
Plaintiff Ernest Ward, proceeding pro se,1 appeals the district court’s grant
of summary judgment in favor of his employer, Troup County School District
(“School District”). In this civil action, Plaintiff asserts claims for race
discrimination, sex discrimination, and for retaliation in violation of Title VII of
the Civil Rights Act, 42 U.S.C. § 2000e, et seq. (“Title VII”), and 42 U.S.C.
§ 1981.2 No reversible error has been shown; we affirm.
I. Background
Plaintiff (a black male) has been employed by the School District since
1994. Between 2007 and 2012, Plaintiff was the principal at Gardner Newman
Middle School. During the 2011-2012 school year, the School District received
several complaints about Plaintiff from parents after Plaintiff made changes to
student eligibility for advanced content classes.
1
We construe liberally pro se pleadings. See Tannenbaum v. United States, 148 F.3d 1262,
1263 (11th Cir. 1998).
2
Plaintiff also alleged a claim for violation of the First Amendment. Plaintiff raises no
challenge to the district court’s grant of summary judgment in favor of the School District on this
claim. Plaintiff’s First Amendment claim is thus not before us on appeal.
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Plaintiff was then transferred to serve as principal at Whitesville Road
Elementary School for the 2012-2013 school year. During that year, Plaintiff’s
supervisor received several complaints from teachers about Plaintiff’s performance
and professionalism. In addition, Plaintiff completed annual teacher evaluations
for six teachers without first performing a formal classroom observation as
required by the School District’s procedures. Whitesville also had a high rate of
out-of-school suspensions, representing nearly half of the School District’s
elementary out-of-school suspensions.
In October 2013, Plaintiff sent an email to Whitesville faculty and staff in
which he complained that some teachers had been relying on him too heavily to
maintain control of their classrooms. Plaintiff told his staff to “decide if teaching
is for you and do what you need to be successful or find . . . another profession.”
Plaintiff said anyone unable or unwilling to adjust to his expectations could submit
their resignation.
In response to Plaintiff’s October 2013 email, Plaintiff was placed on a
mandatory Professional Development Plan (“PDP”). As part of the PDP, Plaintiff
was required to shadow four elementary school principals with a focus on
“[p]lanning and conducting staff meetings; working collaboratively with
instructional specialists; conducting classroom walkthroughs, establishing and
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communicating curriculum and instructional expectations; and, managing time
with all administrative tasks.”
In March 2014, Plaintiff received his 2013-2014 annual evaluation. The
evaluation rated Plaintiff as satisfactory overall but rated him as needing
improvement in planning and implementing curriculum, staff evaluation, and
communicating effectively with personnel.
At the end of the 2013-2014 school year, Plaintiff was not recommended for
re-employment as a principal. Plaintiff was, instead, reassigned to teach physical
education at a different elementary school. Plaintiff’s replacement as principal at
Whitesville was a black female.
In December 2017, Plaintiff filed this civil action. The magistrate judge -- in
an 88-page report and recommendation (“R&R”) -- recommended granting the
School District’s motion for summary judgment. The district court overruled
Plaintiff’s objections to the R&R. The district court adopted the R&R and granted
summary judgment in favor of the School District.
II. Discussion
We review de novo the district court’s grant of summary judgment. Ave.
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CLO Fund, Ltd. v. Bank of Am., N.A., 723 F.3d 1287, 1293 (11th Cir. 2013). We
view the evidence and draw all reasonable inferences in the light most favorable to
the non-moving party. Id. at 1294.
A. Race & Sex Discrimination3
The law teaches that “federal courts do not sit as a super-personnel
department that reexamines an entity’s business decisions.” See Chapman v. AI
Transp., 229 F.3d 1012, 1030 (11th Cir. 2000) (en banc). Our “sole concern” in a
Title VII civil action is whether the employer engaged in unlawful discrimination -
- not whether the plaintiff is, in fact, a good employee. Alvarez v. Royal Atl.
Devs., Inc., 610 F.3d 1253, 1266 (11th Cir. 2010). In other words, “[a]n employer
may fire an employee for a good reason, a bad reason, a reason based on erroneous
facts, or for no reason at all, as long as its action is not for a discriminatory
reason.” Id. (citation and alteration omitted).
Title VII does make it unlawful for an employer to discriminate on the basis
of an employee’s race or sex. See 42 U.S.C. § 2000e-2. Both Title VII and section
3
In his appellate brief, Plaintiff appears to argue that he has demonstrated race discrimination
based on both a mixed-motive theory and on a disparate-impact theory. Because Plaintiff
presents these arguments for the first time on appeal, we will not consider them.
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1981 “have the same requirements of proof and use the same analytical
framework.” Standard v. A.B.E.L. Servs., Inc., 161 F.3d 1318, 1330 (11th Cir.
1998). Plaintiff bears the ultimate burden of proving -- by a preponderance of the
evidence -- that the School District discriminated unlawfully against him. See
Crawford v. Carroll, 529 F.3d 961, 975 (11th Cir. 2008).
Because this case involves only circumstantial evidence of discrimination,
we apply the burden-shifting framework established in McDonnell Douglas Corp.
v. Green, 411 U.S. 792 (1973). See Alvarez, 610 F.3d at 1264. Under this
framework, the plaintiff must first establish a prima facie case of discrimination,
which creates a presumption of unlawful discrimination against the employee. Id.
The employer may then rebut that presumption with legitimate, nondiscriminatory
reasons for the adverse employment acts. Id. The burden then shifts to the
employee to produce evidence sufficient to create a genuine issue of material fact
that the employer’s articulated reasons are a pretext for unlawful discrimination.
Id.
To establish a prima facie case of discrimination, a plaintiff must establish
that he (1) belongs to a protected class, (2) was subjected to an adverse
employment action, (3) was qualified to perform the pertinent job; and (4) was
treated less favorably by his employer than “similarly situated” employees outside
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the protected class or was replaced by someone outside his protected class. Lewis
v. City of Union City, Ga., 918 F.3d 1213, 1220-21 (11th Cir. 2019) (en banc);
Cuddeback v. Fla. Bd. of Educ., 381 F.3d 1230, 1235 (11th Cir. 2004) (listing the
prima facie elements for discriminatory discharge). That Plaintiff satisfied the first
three elements is undisputed. Briefly stated, the adverse employment acts
underlying Plaintiff’s claims are Plaintiff’s placement on the PDP and Plaintiff’s
removal from his position as principal at Whitesville.
To satisfy the similarly-situated element, a plaintiff must show that he and
his comparators are “similarly situated in all material respects.” Id. at 1226.
Whether a comparator meets this standard is determined “on a case-by-case basis,
in the context of individual circumstances.” Id. at 1227. Generally speaking, a
“similarly situated” comparator is an employee who “engaged in the same basic
conduct (or misconduct) as the plaintiff;” was “subject to the same employment
policy, guideline, or rule;” had the same supervisor; and who “share[d] the
plaintiff’s employment or disciplinary history.” Id. at 1227-28.
In support of his claims for race and sex discrimination, Plaintiff identified
six white female principals as purported comparators. The record supports the
district court’s determination that these six people were not “similarly situated in
all material respects” to Plaintiff. Among other things, none of the six comparators
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sent an unprofessional school-wide email; and none completed teacher evaluations
without performing the required observations. Because nothing evidences that the
proposed comparators engaged in basic misconduct similar to Plaintiff, they do not
constitute proper comparators.
Because Plaintiff identified no similarly-situated comparator who was
treated more favorably than he was -- and because he was replaced by a person of
the same race -- the district court concluded properly that Plaintiff failed to
establish a prima facie case of race discrimination.
Plaintiff did, however, establish a prima facie case of sex discrimination for
his removal as principal: Plaintiff’s replacement was female. The School District
presented two legitimate, nondiscriminatory reasons for removing Plaintiff from
his position as principal: (1) Plaintiff’s lack of tenure and (2) Plaintiff’s history of
misconduct, including the October 2013 email, Plaintiff’s completing teacher
evaluations without conducting the required observations, excessive and
inappropriate student discipline, and placing students inappropriately into
advanced content classes.
Once the School District identified legitimate, nondiscriminatory reasons for
its decision, the burden shifted back to Plaintiff to demonstrate “that the reasons
given by the employer were not the real reasons for the adverse employment
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decision.” See Chapman, 229 F.3d at 1024. When -- as in this case -- the
employer’s “proffered reason is one that might motivate a reasonable employer, an
employee must meet that reason head on and rebut it, and the employee cannot
succeed by simply quarreling with the wisdom of that reason.” See id. at 1030. To
satisfy his burden of showing pretext, Plaintiff must demonstrate “weaknesses,
implausibilities, inconsistencies, incoherencies, or contradictions in the employer’s
rationale.” See Holland v. Gee, 677 F.3d 1047, 1055-56 (11th Cir. 2012). Plaintiff
has failed to do so.
Plaintiff does not dispute that the October 2013 email was unprofessional,
but says he sent the email because he was frustrated with the ongoing discipline
issues at Whitesville and the lack of additional resources provided by the School
District. In a similar way, Plaintiff does not dispute that he failed to conduct
formal observations for all teacher evaluations, but indicates that he and his
supervisor had a difference of opinion about the pertinent observation
requirements. Plaintiff also disagrees that Whitesville had excessive numbers of
out-of-school suspensions, and he seeks to justify his decision to restructure the
advanced content classes.
Plaintiff also disagrees with his “needs improvement” ratings on his 2013-
2014 annual evaluation; he disagrees because (1) he was rated “Satisfactory” in his
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2012-2013 annual evaluation, (2) he was rated “Satisfactory” overall in his 2013-
2014 annual evaluation, and (3) his supervisor gave him no advance notice of the
purported deficiencies.
Instead of rebutting the School District’s proffered reasons, Plaintiff mainly
quarrels with the strength of those reasons or attempts to justify or to blame others
for his acts of alleged misconduct. That Plaintiff subjectively disagrees with the
merits of the School District’s reasons and with the soundness of the School
District’s assessment of his performance is not enough to show that the proffered
reasons were not the real reasons for the School District’s decision. See Chapman,
229 F.3d at 1030.
On this record, Plaintiff has failed to show that the School District’s
proffered reasons were so implausible, inconsistent, or incoherent that a reasonable
factfinder could infer that the reasons were not the true reasons and were, instead, a
pretext for unlawful discrimination. See Holland, 677 F.3d at 1055-56.
We affirm the district court’s grant of summary judgment in favor of the
School District on Plaintiff’s claims for discrimination based on race and sex.4
4
We also see no error in the district court’s alternative reason for granting summary judgment
on Plaintiff’s claim for race discrimination in violation of section 1981 -- that Plaintiff failed to
demonstrate sufficiently the existence of a discriminatory policy or custom of the School
District.
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B. Retaliation
Apart from the issue of prohibited discrimination, employers are barred from
retaliating against an employee because he opposed an employment practice made
unlawful by Title VII. See 42 U.S.C. § 2000e-3(a). We apply the McDonnell
Douglas burden-shifting framework to retaliation claims based on circumstantial
evidence. See Brown v. Ala. Dep’t of Transp., 597 F.3d 1160, 1181 (11th Cir.
2010).
To establish a prima facie case for retaliation under Title VII or section
1981, a plaintiff must show that he engaged in statutorily protected activity and
that he suffered a materially adverse employment act that was causally related to
the protected activity. Chapter 7 Tr. v. Gate Gourmet, Inc., 683 F.3d 1249, 1258
(11th Cir. 2012).
The district court committed no error in concluding that Plaintiff engaged in
no statutorily protected activity. In substance, Plaintiff contends the School
District retaliated against him after Plaintiff raised concerns about the
disproportionate number of black students assigned to Whitesville. Plaintiff’s
complaints about school districting, however, constituted no opposition either to an
employment practice made unlawful under Title VII or to discrimination in the
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making and enforcement of contracts in violation of section 1981. Cf. Little v.
United Techs., Carrier Transicold Div., 103 F.3d 956, 959 (11th Cir. 1997) (stating
that “not every act by an employee in opposition to racial discrimination is
protected” and that “[t]he opposition must be directed at an unlawful employment
practice of an employer.”).
AFFIRMED.5
5
In his appellate brief, Plaintiff contends the School District denied him procedural protections
under Georgia law. Because Plaintiff never raised this argument in the district court, the
argument is not properly before us on appeal.
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