Christian v. Cartersville City Schools Board of Education

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT

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No. 05-11131 FILED
Non-Argument Calendar U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
-------------------------------------------- January 12, 2006
THOMAS K. KAHN
D.C. Docket No. 03-00055-CV-HLM-4 CLERK

PAULETTE CHRISTIAN,

Plaintiff-Appellant,

versus

CARTERSVILLE CITY SCHOOLS BOARD OF EDUCATION,
STEVE GAMBILL,
Individually and in his official capacity as Principal,
MIKE BRYANS,
in his official capacity as Superintendent,

Defendants-Appellees.

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Appeal from the United States District Court
for the Northern District of Georgia
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(January 12, 2006)

Before EDMONDSON, Chief Judge, BLACK and PRYOR, Circuit Judges.

PER CURIAM:
Plaintiff-Appellant Paula Christian, an African-American, appeals the

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

Cartersville City Schools Board of Education (the “Board”), the City Schools

Superintendent Mike Bryans, and Principal Stephen Gambill, on Plaintiff’s

complaint alleging racial discrimination, raised pursuant to 42 U.S.C. §§ 1981

and 1983, and Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. §§

2000e, et seq.1 No reversible error has been shown; we affirm.

Plaintiff was employed as a teacher at Cartersville Elementary School from

August 1996 through 2002. Plaintiff received satisfactory annual evaluations until

2000, when Gambill became principal. Under Gambill, the Plaintiff received

some negative evaluations. When a teacher receives five “needs improvement”

scores on formal evaluations, that teacher is subjected to additional monitoring.

1
Plaintiff’s complaint included also a claim of retaliation under Title VII, a state-law claim for
intentional infliction of emotional distress, and a claim of constructive discharge. Summary
judgment was granted dismissing these claims. About the retaliation claim, Plaintiff failed to show
that she engaged in statutorily protected activity, and Plaintiff failed to show an adverse employment
act. About the state law-claim, the magistrate judge determined that no probative evidence linked
acts by Defendants to claimed maladies suffered by Plaintiff. Because Plaintiff does not pursue these
claims on appeal, they are deemed abandoned. See Draper v. Reynolds, 369 F.3d 1270, 1277 n. 12
(11th Cir.), cert. denied, 125 S.Ct. 507 (2004). About the constructive discharge claim, Plaintiff
failed to address constructive discharge in her brief in opposition to summary judgment before the
magistrate judge; the magistrate judge concluded the constructive discharge claim was abandoned.
Plaintiff sought to revive the constructive discharge claim in her objections to the magistrate report,
although even Plaintiff conceded that “she was not specific in addressing the constructive discharge
claim;” the district court adopted expressly the magistrate judge’s conclusion that Plaintiff
abandoned her constructive discharge claim. We agree.

2
Plaintiff was the subject of much additional observation by Gambill and

Cartwright, the assistant principal. Also, an independent educational consulting

group known as “RESA” was contacted; and a RESA consultant was assigned to

observe and evaluate Plaintiff. The RESA consultant concluded that Plaintiff’s

performance was unacceptable. Gambill received many complaints from parents

about Plaintiff’s conduct in her classroom.

In early 2002, Gambill told Plaintiff that the Board would not renew her

contract for the next year. Under Georgia state law, a teacher’s contract is

automatically renewed if no written notice of non-renewal is received by April

15th. See O.C.G.A. § 20-2-211.2 The other teachers -- none of whom were

African-American -- all received renewal contracts before April 15. Unlike her

colleagues, Plaintiff received no renewal contract before April 15; but it is

undisputed that the Board failed also to send Plaintiff written notice of

non-renewal by 15 April 2002. The absence of written notice of non-renewal

operated as a matter of law as an offer to renew Plaintiff’s contract.

2
O.C.G.A. § 20-2-211(b) provides, in relevant part: “[E]ach local governing board shall, by not
later than April 15 of the current school year, tender a new contract for the ensuing school year to
each teacher....or shall notify in writing each such teacher... of the intention of not renewing....When
such notice of intended termination has not been given by April 15, the employment of such teacher
... shall be continued for the ensuing school year unless the teacher ... elects not to accept such
employment....”

3
In May 2002, Plaintiff was provided a contract for the following year, which

she refused to sign. Plaintiff claims that Gambill told her that she could work in

the school system but that she would be placed at another school. Instead of

accepting the job at another school in the Cartersville City school system, Plaintiff

informed Appellees that she would accept a teaching position in the City of

Atlanta school system.

Plaintiff alleged that Gambill’s negative evaluations and increased scrutiny

were harassing and without legitimate reason. Plaintiff claimed that Gambill acted

because of her race and because she had complained about what she believed to be

racially discriminatory disciplinary treatment meted out to students. Plaintiff also

contended that the increased classroom observations to which she was subjected

and the decision not to renew her contract were motivated by racial animus and

constituted a constructive discharge. According to Plaintiff, the belated contract

offer she received in May was a pretext to cover Appellees’s illegal motives.

A plaintiff in a Title VII case alleging discriminatory treatment and relying

on circumstantial evidence bears the initial burden of establishing a prima facie

case of discrimination by a preponderance of the evidence.

Texas Dept. of Community Affairs v. Burdine, 101 S.Ct. 1089,1093) (1981). A

plaintiff establishes a prima facie case of racial discrimination by showing that she

4
was (i) a member of a protected class; (ii) subjected to an adverse employment act;

(iii) qualified to do the job; and (iv) replaced by, or otherwise lost a position to, a

person outside the protected class. Chapman v. AI Transp., 229 F.3d 1012, 1024

(11th Cir. 2000). The Report and Recommendation prepared by the magistrate

judge concluded that Plaintiff failed to show an adverse employment act. In a

comprehensive opinion adopting the Report and Recommendation, the district

court concluded similarly that Plaintiff failed to establish a prima facie case

because no adverse employment act had been shown.

At issue is whether statements made to Plaintiff by Appellees in early 2002

that no contract renewal would be forthcoming establishes the requisite adverse

employment act. Citing Maxwell Federal Credit Union v. Nance, 186 F.3d 1338

(11th Cir. 1999), Plaintiff argues that the oral notice in early 2002 of the Board’s

intent not to renew her contract constituted an adverse employment act. In

Maxwell, this Court concluded that an employer’s decision communicated to the

employee that the employee would be required to take a demotion or resign

constituted an adverse employment act even though the employer reversed the

decision before the employee was required to accept a demotion or resign. Id. at

1341. Maxwell concluded that Chardon v. Fernandez, 102 S.Ct. 28 (1981),

5
foreclosed treating the consequences of the employer’s decision -- the demotion of

resignation -- as the adverse employment act. Maxwell, 186 F.3d at 1341.

In Chardon, the Supreme Court determined that the statute of limitations

begins to run for employment discrimination actions on the date an employer

notifies an employee of a termination decision and not when the employee actually

is terminated. Chardon, 102 S.Ct. at 29. Extrapolating from the Chardon

decision, we in Maxwell, concluded that the discriminatory violation occurred

when the employer made the decision to demote or discharge on an impermissible

basis and notified the employee of the decision: that the employer later changed

its mind did not remedy the violation. Maxwell, 186 F.3d at 1341.

The operative decision in Maxwell (the decision to demote or discharge)

and the operative decision in Chardon (the decision to terminate on a specified

date in the future) required no further act by the employer to effect an adverse

change in the complainant’s employment. The instant appeal, is different. An

earlier decision to terminate when no written notice of termination was delivered

to Plaintiff by 15 April 2002 was incapable -- as a matter of law -- of effecting an

adverse change in Plaintiff’s employment. And as required under Georgia law,

Plaintiff was offered a contract renewal -- which she declined -- before she could

6
suffer a tangible harm.3 The undisputed facts show, as a matter of law, that

Plaintiff failed to establish a prima facie case: no adverse employment act was

shown.4

Plaintiff fails to show reversible error.

AFFIRMED.

3
While Nance supports Plaintiff’s argument that a decision to terminate establishes an adverse
employment act before an act of actual termination transpires, this Court also has observed that a
decision to reprimand, to transfer or not to promote an employee is no adverse employment act if the
decision is rescinded before the employee suffers a tangible harm. Pennington v. City of Huntsville,
261 F.3d 1262, 1267 (11th Cir. 2001). Because we conclude that Georgia statutory law renders
Nance inapplicable to Plaintiff’s contentions, we need not address any seeming tension between
Nance and Pennington.
4
Even if we were to assume arguendo that Plaintiff established a prima facie case, Defendants
proffered a legitimate non-discriminatory reason for its acts: complaints and concerns about
Plaintiff’s teaching performance, including the opinion of an independent observer that Plaintiff’s
teaching performance and classroom control were unacceptable. While Plaintiff argues that these
expressed performance-based reasons were pretextual, viewing the evidence in a light most favorable
to Plaintiff, Plaintiff failed to come forward with evidence “sufficient to permit a reasonable
factfinder to conclude that the reasons given by the employer were not the real reasons” for the
employment action. Chapman v. AI Transp., 229 F.3d at 1024 (internal quotation and citation
omitted). In short, Plaintiff failed to “proffer sufficient evidence to create a genuine issue of material
fact regarding whether each of the defendant employer’s articulated reasons is pretextural.” Id. at
1024-25.